fr&* 




LIBRARY OF CONGRESS. 



Chap... Copyright Xo. 

Shelf JL"5L5.K *t 
1^1? 



UNITED STATES OF AMERICA. 



&uitort}r)J fcj> 3Lato. 



A COMPILATION 



LAWS OF ILLINOIS 

A • 

RELATING '. 

TOWNSHIP ORGANIZATION 



MANAGEMENT OF COUNTY AFFAIRS, 

WITH 

NUMEROUS PRACTICAL FORMS, AND NOTES OF INSTRUCTION, 
SUPPORTED BY REFERENCES TO ADJUDICATED CASES. 

<Q x N£ir REVISED EDITION, 

v ^\ Embracing the Laves dcun to, and including, 1ST 7. 

WITH AN APPENDIX 

BY ELIJAH M. HAINES, 

COUNSELOR -AT- 1. AW, 

Comi> : .;cr of Township Organization La'.ix of Wisconsin, Michigan, Missouri, and Minnesota; and Author 
of the Probate Manual, and a Treatise for Justices of the Peace. • 

CHICAGO: 
E. B. MEYERS AND COMPANY, 

LAW BOOK-ELLERS AND PUBLISHERS, 

1877. 



D 



X* 






Entered according to Act of Congress, in the year 1856, 

Bt ELIJAH M. HAINES, 

In the Clerk's Office of the District Court for the Northern District of Ulinote. 



Entered according to Act of Congress, in the year 1877, 

Bt ELIJAH M. HAINES, 

In the Office of the Librarian of Congress, at Washington. 



LEGISLATIVE ENDORSEMENT. 

AN ACT in relation to the Compilation and Distribution of the General Laws of the State qf 
Illinois, relative to Township Organization. 
Section 1. Be it enacted by the People of the State of Illinois, represented in the Generml 
Assembly, That upon delivery to the Secretary of State, of a number of copies sufficient to 
■apply each township in the State in the counties adopting township organization, with ten 
copies for each township, of a work entitled a Compilation of all the General Laws of the 
State of Illinois, relative to Township Organization, to which are added numerous practic- 
ble forms and notes, with references to decisions of the older States on questions upon like 
•tatutee, with a copious Index, by Elijah M. Haines, counselor-at-law, the said Secretary of 
State shall give to the said Elijah M. Haines, the compiler of said work, or to his order, a 
certificate of the delivery thereof, 6tating therein the number of copies so delivered, the 
number required, as contemplated by this act, to be ascertained from the records of the 
.office of the Auditor of public accounts. 

************ 

' Sxo. 3. The Secretary of State shall distribute the said books among the several counties 
•dopting township organization, allowing to each county a sufficient number to afford ten 
copies to each township therein, which shall be transmitted by the Secretary of State to 
the several county clerks of said counties, to be distributed among the several town officers 
M the Board of Supervisors shall order. 
Sec. 4. This act to take effect and be in force from and after its passage. 

THOS. J. TURNER, 
Speaker of the House of Representatives. 

G. KOERNER, 
Speaker of the Senate. 
Approved February 9, 1855 

J. A. MATTESON. 



ADVERTISEMENT. 



The General Assembly, at its late session, passed a new 
act on the subject of Roads and Bridges, for counties under 
Township Organization, repealing the former act on that sub- 
ject. Various acts were also passed at the same session 
amendatory to the laws relating to Township Organization, 
which has called for a revision of this compilation. The pres- 
ent edition of this book, therefore, embraces all the laws 
relating to Township Organization in force at the present 
date, with late decisions and the necessary forms, 

E. M. HAINES. 

September 1, 1877. 



PREFACE. 



The first edition of this compilation was published in 1855. Before 
publication the plan of the work was submitted to the General Assem- 
bly of the State for their approval and patronage. It was favorably 
considered, and a number of books ordered at the expense of the 
State sufficient to supply each township in the State with ten copies, 
making in the aggregate about eight thousand conies. This is re- 
garded as a legislative endorsement of the book, making it the official 
guide for all public officers. The work has been received with such 
favor by public officers and citizens generally that the entire sale at 
the present time exceeds fifty thousand copies. 

The peculiar features of this work are : 1. It presents all the statute 
law on the subject of Township Organization, or that has any con- 
nection therewith — collected together in one volume — in methodi- 
cal and convenient form for reference. 2. It gives a full and com- 
plete collection of forms for proceeding under the law. 3. It gives, 
by way of notes full instructions in regard to every branch of the 
law, clearly expressed and supported by reference to judicial deci- 
sions. 4. It presents the law, the forms, and the notes, where they 
relate to a given subject, on the same page, and in immediate connec- 
tion. It is this arrangement — which the compiler himself origin- 
ated — that contributes in giving the work its great value as a useful 
and indispensable book for all public officers under the township 
organization system ; and the important matter it contains renders 
it valuable for every citizen and tax-payer in the State. 

The plan of the work, as stated, being original with the compiler, 
he has secured the benefits thereof — together with the matter 
therein prepared by himself — under the copyright laws of the 
United States. 

The many changes in the law required a thorough revision of the 
work in 1861, and a further revision in 1870, to conform to the 
changes under the new Constitution. The work was again partially 
revised in 1873, in accordance with the laws passed under the Con- 
stitution of 1870. The work of general revision of the statutes having 
been completed at the late session of the legislature, this book is now 
completely revised and adapted to the new revision of the statutes. 

It will be observed that the Township Organization act, as lately 
revised by the legislature, has made many radical changes in the 



1*2 PREFACE. 



law concerning township affairs. In some of its provisions the Town- 
ship Organization act is vague and uncertain. In Article I., con- 
cerning adopting township organization, the tcmm meeting is entirely 
ignored : reference only being made to the election of town officers, 
or, as termed by the act, the " town election." The town meeting, 
as provided in a subsequent portion of the act, is a mere skeleton of 
that existing under the former township organization act. The act 
omits to provide for the number of commissioners of highways in 
each town, and to fix their term of office ; Section 16, Article I., how- 
ever, assumes the number to be three and the term of office to be 
three years ; one commissioner to be elected each year as heretofore. 

Whatever may be regarded as defective in the new law, it is pre- 
sumed the legislature will take action upon at an early day. It was 
to be hoped that the laws concerning township organization, when 
revised in accordance with the new Constitution, would have been 
made so complete as not to require further change for a long time to 
come, but in this our expectations have not been fully realized. 

It has been the endeavor of the compiler to explain in the notes 
to the text, every apparent ambiguity in the law, and give as full 
instructions on doubtful points as the light of judicial determina- 
tions would warrant. 

Notes of the decisions of the Supreme Court of Illinois, relating to 
the laws which the compilation embraces, are given in this edition 
down to Volume 80 of the Reports ; notes of the decisions of other 
States, which were found applicable, are also given. There is also 
added notes of opinions given by the State Auditor of Public Ac- 
counts in regard to the revenue laws of the State. Reference is also 
made in several instances to the opinions of Attorney General 
Edsall, of Illinois and the Attorney General of Minnesota. 

A new feature in the present edition of this compilation is the 
addition, in the Appendix, of a brief summary of the rules of parlia- 
mentary law, for the benefit of town meetings and boards of super- 
visors. Efficiency can never be ex.pected in any deliberative body 
where parliamentary rules are disregarded. Hence a study and 
proper understanding of these rules is necessary on the part of every 
member of the board of supervisors and every elector who expects 
to attend the town meeting. This feature therefore renders the 
book of increased value. 

The plan of the present edition will be best understood by refer- 
ence to the table of contents on the following page. It varies mate- 
rially from that of former editions. This has seemed necessary from 
the radical changes in the law through the late revision of the 
statutes. 

ELIJAH M. HAINES. 

Chicago, III., July 1, 1874. 



TABLE OF CONTENTS. 



DIVISION I. 

PAGE. 

TowNsnip Organization Act 29- 98 

DIVISION II. 
Roads and Bridges 99 172 

DIVISION III. 
Railroad Crossings and Regulations 173-175 

DIVISION IV. 
Fences 177-190 , 

DIVISION V. 
Paupers 191-2006 

DIVISION VI. 
Township Insurance Companies 201-206 

DIVISION VII. 
Revenue 207-29& 

DIVISION VIII. 
Elections 29C-335 

DIVISION IX. 
County Affairs — 

1. Counties 337-353 

2. Removal of County Seats 354-361 

3. County Clerk 362-363 

4. County Treasurers 364-366 

5. State's Attorneys 367-368 

6. Weights and Measures • 369-371 

7. Animals running at large 372-373 

Appendix 375-382 



TOWNSHIP ORGANIZATION; -ITS ORIGIN AND 
PROGRESS IN THE WESTERN STATES, (i) 



Township Organization, so-called, is a system in government hav- 
ing its origin in the New England States; and, as the people of those 
states have migrated westward, it has been carried into most of the 
northern and western states. It is simply a system whereby the territory 
of each county is divided into convenient districts, called towns, or town- 
ships, which become a species of bodies corporate, or, as they are more 
commonly styled, quasi corporations. The object and result of this system 
is to bring the local affairs of the county under the immediate control and 
direction of the people. In this respect it not only becomes the life and 
soul of a free government, but it becomes an institution for the practical 
education of the people in the principles of that system of government — 
the peculiar features of the system being that every voter of the town- 
ship is required to assume a direct responsibility in the administration of 
local public affairs. 

No scheme, having much similarity to our present system of township 
organization, is found in ancient history. The municipal divisions of 
Athens and other ancient republics were rather into castes or social ranks, 
than territorial; although the "demes" of ancient Athens, the Roman 
and Grecian colonies, and at a later day the free cities of mediaeval Europe, 
possessed more or less of the privileges of self-government, such as elec- 
tion of officers, management of funds, and the like. These cases, how- 
ever, are exceptions; isolated instances of the universal instinct for self- 
government which is born with all men, but repressed under non- elective 
and irresponsible governments. 

In England, about A. D. 871, King Alfred, to prevent the rapines and 
disorders which prevailed in the realm, instituted a system of territorial 
division, which probably contains the first germ of our American idea of 
a township. This was a division of the kingdom into "tithings," an 
Anglo-Saxon term equivalent to "tenthings," or groups of ten. Each 
tithing was the area inhabited by ten contiguous families, who were 
" frankpledges," i. e., free pledges or sureties to the king for each other's 
good behavior, and were bound to have any offender within their district 
forthcoming. One of the principal inhabitants of the tithing was 
annually appointed to preside over it, entitled tithingman or head- 

(1) The matter under this head is in substance that contained in a paper prepared 
by E. M. Haines, and read by invitation before the American Social Science Asso- 
ciation, at Saratoga, N. Y., Sept. 8, 1876, and published in the Penn Monthly, of Phil- 
adelphia, May, 1877. 



16 TOWNSHIP ORGANIZATION SYSTEM; 

borough, being supposed the most discreet man within it. As ten fami- 
lies constituted a tithing, so ten tithings formed a hundred, governed by 
a high constable or bailiff; and an indefinite number of hundreds com- 
posed a shire or county. 

Tithings, towns or Tills were, by the laws and customs of England, of 
the same signification; but the word town or vill has, it seems, by the 
alteration of time and language, now become, in that country, a generical 
term, comprehending, under it the several species of cities, boroughs and 
common towns. A city originally signified a town incorporated, which 
was, or had been, the see or seat of a bishop. A borough was understood 
to be a town, either corporate or not, that sent burgesses to parliament.! 2) 

The word town, strictly speaking, applies to a collection of houses hav- 
ing a population to that extent that the inhabitants are presumed to act 
as a body corporate for municipal regulations. But the word township 
applies to a territorial division of country, without reference to a compact 
condition of dwellings. The word ship, as here used, probably comes 
from the Dutch schip or Anglo-Saxon scyppen, to mould, form, shape, 
which, when added to the word town, in this connection, signifies the 
shape or outward boundaries which have been given to the town. 

Township organization, as a term, applied to a system for the regulation 
and management of municipal or fiiscal affairs, was first employed in 
that sense by the Constitution of Illinois, as amended in 184S, wherein 
was contemplated a division of the counties of the Stite into smaller dis- 
tricts, forming bodies corporate, for the regulation and management of 
local affairs, denominated Township Organization. 

. The State of Illinois being originally comprised within the territory of 
country belonging to the State of Virginia, received an early impress of 
the general features of the municipal system of that State, irom which it 
provided for departing, as a settled policy, in the revision of the Consti- 
tution in 1848. And so, too, the influence of the parent State of Vir- 
ginia in this regard was in like manner originally extended in a greater 
or less degree over all those States carved out of the . territory northwest 
of the Ohio river. 

A learned writer on the subject of the origin of laws and government, 
remarks, that we are not to consider the first laws of society as the fruit 
of any deliberation confirmed by solemn and premeditated acts. They 
were naturally established by a tacit consent, a kind of engagement to 
which men are naturally very much inclined. Even political authority 

(2) In common speech, town, city and village are of the same import. A village is 
anv small assemblage of houses occupied by artizans, laboring people and farmers. 
It "is a defined localitv, with a name. Herbert et al. v. Lavalle, 27 111. ft., 448. Any 
small assemblage of houses for dwellings or business, or both, in the country, 
constitutes a village, whether they are situated upon regularly laid out streets and 
alleys or not. A place at a railroad station where there "was a mill, a blacksmith's 
shop, a store and a grocery, with dwelling houses to accommodate those carrying 
on said business, was held to be a village in the common acceptation of the term. 
111. Ccn. B. E. Co. v. William*, 27 111. R., 4cS. In Illinois a village, to become incor- 
porated, must have at least three hundred inhabitants. Rev. Stat., p. 242, ? 5. 

A place to become incorporated as a city is required to have at least one thousand 
inhabitants. Rev. Stat., p. 212, # 5. Therefore, a city in Illinois is a place having a 
large assemblage of houses, with a population exceeding one thousand inhabitants. 



ITS ORIGIN AND PROGRESS. 17 

was established in this manner by a tacit, agreement between those who 
submitted to it and those who received it. This idea applies with much 
force to that American system of government now so perfect and harmo- 
nious in its operation. 

De Tocqneville, in his work entitled American Institutions, in speaking 
of our political system, very properly remarks that two branches may be 
distinguished in the Anglo-American family which have grown up with- 
out entirely commingling — the one in the South, the other in the North. 
He discovers the causes which led to this condition of things, which are 
apparent to the most casual observer. They arise, not from design, but 
from the force of circumstances at the beginning. The planting of the 
original colony of Virginia at Jamestown had, for its design, the single 
and naked object of pecuniary profit to the proprietors. Its mission in- 
volved no principle for the benefit of mankind. It recognized the crown 
of Great Britain, from whence it derived the charter of its existence, as 
the source of political power. There was no recognition of the principle 
of self-government, or right of those not commissioned by the Crown for 
that purpose, to have any part in administering the government. 

Indeed, it was not intended that the administration of public affairs 
should be committed to those who were to form the population of the 
colony. The colonists in general came with no such intention on their 
part. They were not of that class to concern themselves in the affairs of 
government. They are mentioned by the historian as largely comprised 
of adventurers, discharged servants, fraudulent bankrupts, and vagabond 
gentlemen. 

At that day the church was merged in the State. The latter was in 
reality subordinate to the influence of the former. The early charters of 
Virginia required the establishment of the church of England, and 
authorized the infliction of punishment for drawing off the people from 
their religion, as a matter of equal importance with their allegiance. 
These circumstances conspired to assimilate the form of government to a 
system in which the masses had no control. The large landed estates, and 
consequently sparse settlements of the country, obviated the necessity of 
attention to public roads, or local improvements of a character demanded 
in a community of mutual interests or more dense population. The func- 
tions of government were, therefore, reduced in like proportion, being 
confined mostly to those of a judicial character for the adjustment of con- 
troversies and enforcement of penal laws. This gave rise to a division of 
the colony into counties or districts, for the purpose of defining the juris- 
diction of courts of justice, and the convenience of collecting revenue for 
support of the govermnent. 

But the circumstances attending the first settlement of the Colonies of 
New England, so called, were of an entirely different character. The early 
colonists in this instance were non-conformists or dissenters from the Church 
of England. They came as exiles, fleeing from the wrath of ecclesiasti- 
cal tyranny, whose displeasure they had incurred; cast out as public offend- 
ers, — " as profane out of the mountain of God." Whilst the colonists of 
2 



18 TOWNSHIP ORGANIZATION SYSTEM; 

Virginia came with the law, those of New England came against the 
law; or perhaps, more properly speaking, without law. Thereupon arose 
on the" part of the latter, a positive necessity for the establishment of law 
for their mutual protection. But this necessity was not realized until the 
occurrence of threatened dissentions among themselves before quitting 
the ship in which they had embarked. The result was a written com- 
pact, subscribed by the male adults of the Infant Colony, declaring that 
those whose names are underwritten, having undertaken for the glory of 
God and the advancement of the Christian faith, to plant a colony in 
America, "do by these presents solemnly and mutually, in the presence 
of God and one another, covenant and combine ourselves together into a 
civil body politic, for our better ordering and preservation, and furtherance 
of the ends aforesaid; and by virtue hereof, to enact, constitute and frame 
such just and equal laws, ordinances, acts, constitutions and officers, from 
time to time, as shall be thought most mete and convenient for the gen- 
eral good of the colony, unto which we promise all due submission and 
obedience." 

This, it is said, is the first written Constitution extant, based upon the 
general good. It was the first time since the "morning stars sang to- 
gether," ' that the people themselves had met in council and framed a gov- 
ernment based upon equal rights. Compacts had been made in the past, 
partial enfranchisements had been conceded, and the power of Kings had 
in some degree been limited; but England, notwithstanding her Magna 
Charta, was still in chains — neither civil nor religious liberty was under- 
stood or practiced in her dominions. The Pilgrim on board the May- 
flower did more for human freedom by this single act, than whole cen- 
turies had done before. 

Another important principle attending this compact, is that, while, 
it is signed and entered into by the adult males only, each affixed oppo- 
site his name the number of persons comprised in his family, as a recog- 
nition of their interests in the premises, and the responsibility of the 
subscriber to them, as the head of the family. In other words it is a 
recognition of the principle that the family is the unit of government; 
that the head of the family, in his exercise of political authority, is their 
representative, and is responsible to them for his action. 

When we contemplate the causes which led to the formation of that 
system of civil government established by the Pilgrim fathers in the Xew 
England colonies, we enter upon a field of increasing interest. It was 
simply the outgrowth of then theory of the Christian church, which con- 
templated the formation of a "pure congregation of true believers, in 
which the right of ecclesiastical self-government should be exercised im- 
mediately by the congregation, not mediately through representa- 
tives. "' as derived from the law of Christ, according to St. Matthew, 
which requires it to be "told to the church," when a brother will not 
hear admonition, the church being nothing but the assembly of believ- 
ers, and according to the word of St. Paul, that the believers must be 



ITS ORIGIN AND PROGRESS. 19 

gathered together for the public censure and excommunication of a scan- 
dalous person. 

In forming a settlement, the first important care of the Pilgrims was 
the erection of a meeting house or place of assembly of the congregation 
for religious worship, around which clustered their habitations; as others 
arrived, or the congregation increased, it became necessary to move off 
and form a settlement at a convenient distance; but for protection 
against the Indians, a number of families, in like manner, settled near 
to each other, in the midst of which was the meeting house of the con- 
gregation.. This clustering system prevailed until after the extirpation 
of the Indian tribes and the establishment of passable roads. The com- 
munities thus formed were called towns, or, as they assumed territorial 
extent with defined boundaries, they were more properly denominated 
townships, in which the local affairs of the the community were managed 
by direction of the freemen assembled in their town meetings, held at 
stated periods, or as occasion demanded. Thus New England grew up 
a congeries of towns. Out of this self-government in the church grew 
self-government in the State, democracy and the representative system. 

In New England, towns existed before counties, and counties were 
formed before States. Originally, the towns or townships exercised all 
the powers of government now possessed by a State. The powers sub- 
sequently assumed by the State governments were from surrender or dele- 
gation on the part of the towns. Counties were created to define the 
jurisdiction of courts of justice. The formation of States was by a union 
of towns, wherein arose the representative system, — each town being rep- 
resented in the State Legislature or general court, by delegates chosen by 
the freemen of the town at their stated town meetings. From thence, as 
De Tocqueville expresses it, " the principles of New England spread at 
first to the neighboring States; they then passed successively to the more 
distant ones, and at length they embraced the whole confederation. 
They now extend their influence beyond its limits over the whole American 
world. The civilization of New England has been like a beacon light 
upon a hill, which, after it has diffused its warmth around, tinges the dis- 
tant horizon with its glow." He adds, that in New England is found the 
germ and gradual development of that township independence winch is" 
the life and mainspring of American liberty; the confederation of the 
States of the National Union being but a further application of the prin- 
ciple whereby were formed the original New England colonies by a union 
of towns. It is to be remarked, however, that notwithstanding this 
manifest influence, and whilst many States have borrowed theories from 
the institutions of New England, yet none have accepted a township sys- 
tem so purely democratic. 

New York, bordering upon the New England States and receiving a 
large proportion of its population therefrom, especially from Connecticut, 
by tacit consent, adopted the township system at an early day. Here, 
however, the system did not grow upon the people as in New England, 
but became adopted in imitation of it; from the circumstances attending, 



20 TOWNSHIP OKGANIZATION SYSTEM; 



it was wanting in those purely democratic elements which characterize 
the New England system. In New York, unlike New England, the State 
government was formed before the township. The formation of the 
township system was through the medium of State authority, recognizing 
the State government as sovereign and supreme, while in New England, in 
the absence of a State body politic in the formation of towns, the freemen 
or the people themselves were the recognized source of power. In New 
York the State became divided into counties, and the counties were sub- 
divided into towns. The town in principle was a mere representative dis- 
trict, and an agency in the State government. In New England a town 
was a commonwealth, the legislative power whereof was vested in the 
freemen when duly assembled. The laws in general were executed by a 
board of officers called select-men of the town. Their principle of repre- 
sentation in forming a State government was one of right, reserved to 
themselves, and not an institution of convenience granted by the State as 
the superior body politic. In New York this system of town representa- 
tion was imitated by providing a county board for the management of the 
fiscal affairs of the county, forming a sort of legislative body concerning 
local affairs, intermediate between the towns and the General Assembly of 
the State — each town being entitled therein to one representative. The 
large extent of the territory of the State rendered the New England sys- 
tem of town representation in the General Assembly impracticable. 

The State of Ohio was entitled to more positive results from the influ- 
ence of New England institutions than it in reality received, from the fact 
that Connecticut for a time claimed dominion within the territory of which 
it was formed, and that its early settlers hailed from the New England 
States. The first settlement of this State at Marietta, by New England 
people, was marked by the same pilgrim spirit which planted the original 
colony at Plymouth. A noticeable characteristic of the early New Eng- 
land colonist is that of at once providing rules for civil government. 
History presents no other such striking instance of this peculiar character. 

In planting the original colony of Virginia, the idea of the necessity of 
laws or rules for the general good seems not to have entered into the minds 
of the colonists. In this regard they committed their interests entirely to 
the church and the crown, relying not upon themselves, but on the author- 
ity which they acknowledged as superior and as possessing the right to 
direct and control their conduct. 

The first settlement of Ohio at the mouth of the Muskingum river, 
afterwards called Marietta, was by a New England Association, under the 
management of Col. Rufus Putnam, in advance of the territorial govern- 
ment established by Governor St. Clair, and whereby it became necessary, 
as is stated, to erect a temporary government in the meantime for internal 
security. For this purpose a set of laws was passed, and published by 
being nailed to a tree in the village, and Return Jonathan Meigs was 
appointed to administer them. 

Among the first acts of the Governor in organizing the territorial gov- 
ernment, was the establishment of one county, comprising all the terri- 



ITS ORIGIN AND PROGRESS. 21 

tory that had been ceded by the Indians, and embracing about half that 
within the present limits of the State. It was called Washing-ton county, 
and was the first political subdivision established in the Territory. Sub- 
sequent legislation in adopting a system of political subdivisions, reveals 
a contest between the county and township organization system. The 
Virginia military reservation drew a considerable number of Revolution- 
ary veterans and others from that State, who naturally contended with 
their New England fellow citizens for that system which was more in har- 
mony with their early notions of government, which exempted the masses 
from the cares and responsibilities of public affairs. For convenience of 
description, the plan was adopted of subdividing the public lands into 
townships of convenient size, of six miles square. This was favorable to 
the idea of organized political townships. But the influence of the Vir- 
ginia system of county organization, was felt to that extent that a plan fol- 
lowed which has been called the compromise system, wherein the functions 
of the government in local affairs, are divided between the counties and 
towsnhips, as bodies politic. 

It was long after the organization of the State government, however, 
that this compromise system was matured in its present form. Notwith- 
standing the ordinance of 1787, for the government of the territory 
northwest of the Ohio River, had recognized and invited township 
organization by providing for township representation, and for the ap- 
pointment of magistrates and other civil officers in townships, the system 
as now existing, became established in Ohio with reluctance, and not until 
the New England spirit of local self-government had so far permeated 
public sentiment as to overcome resistance from Virginia prejudices. 

In organizing civil government in Virginia, the first care of the consti- 
tuted authorities seems to have been the establishment of courts of justice. 
In 1623, courts were directed to be held in the corporations of Charles City 
and Elizabeth City. In 1631, commissioners were appointed to hold 
monthly courts in some of the more remote plantations — styled Commis- 
sioners of the County Courts. In time, as the county system assumed 
form, the fiscal affairs of the county were committed to these Commission- 
ers, or those of like functions. And this seems to have been the origin of 
that executive board called county commissioners, adopted in Ohio, and 
prevailing at first in all the northwestern and newer States — having the 
management of the fiscal and local affairs of the county. 

In the Plymouth Colony, the first act in civil government was the organ- 
ization of the militia for defense against the Indians. So in Ohio, the 
first act of the governor and council was a law " for regulating and estab- 
lishing the militia." Laws of a general nature followed soon thereafter. 
The government of the United States having adopted the policy of dona- 
ting a section, or one mile square, of land in each township, for the bene- 
fit of public schools therein, organization became necessary in time, for 
the management of the fund arising therefrom for the purposes intended. 
This was an additional influence in maturing a township organization 
system, and as the wealth and population of the State has increased, and 



22 TOWNSHIP ORGANIZATION SYSTEM; 

local interests have multiplied, the crude system, as originally commenced, 
has ripened into one in imitation of that in New England, but with more 
limited powers. Larger powers are reserved to the legislature than in 
the New England states, the management of local affairs, as before re- 
marked, being divided between the counties and townships therein. 

By the laws of Ohio, the general powers of a county, as a species of 
corporation, are exercised by a board of county commissioners consisting 
of three persons, elected by the qualified electors thereof. These commis- 
sioners may sue and be sued upon matters in controversy where the county 
is concerned. They have charge of the public buildings, poor houses, 
bridges and public grounds of the county, and the maintenance and sup- 
port of idiots and lunatics. They have authority to establish and vacate 
public roads, and to appropriate funds for their improvement, and they 
have a general supervision over the fiscal affairs of the county. The 
assessment and collection of taxes is in like mannef entrusted to the 
county authorities. A marked feature in the general authority of the 
county commissioners under the present statute, is that of being required 
to subscribe for one copy of the leading newspaper of each political party, 
printed and published in the county, and to cause the same to be bound 
and filed in the county auditor's office, as public archives for the gratui- 
tous inspection .of the citizens of the county. 

The township organization system of Ohio, which has been imitated by 
several of the newer States, is the most simple form of the system which 
exists, that can be called township organization. Indeed, among those 
best understanding what the term township organization imports, it is a 
misnomer as applied to the Ohio system. 

In borrowing from New England, Ohio has substituted, instead of the 
select men of the town, three officers, styled trustees. These, with the 
township treasurer and township clerk, constitute the whole force of town- 
ship officers for the management of local affairs, except overseers of high- 
ways for the various road districts. Each township is made a body politic 
and corporate in express terms. The subjects of which the town has control 
are the repair and superintendence of public roads, and the establishment 
of roads of minor or local importance, estrays, health, fences and in- 
closures, and the support of the poor. The supervision of these various 
affairs, and the execution and enforcement of the laws relating thereto, is 
in general committed to the township trustees. 

A noticeable feature, however, in the Ohio township system, is the 
absence of that institution which De Tocqueville so much admired in the 
political system of the New England "States — the town meeting ; he adds 
that local assemblies of citizens constitute the strength of free nations. 

An eminent citizen of Marlborough, Mass., in writing up the history of 
that town, speaking of the New England political system, takes occasion to 
remark that " a town meeting is a surer exponent of the will of the people 
than a legislative assembly, whether State or National. The nearer you 
come to the fountain of power, the people, the more clearly you perceive 
public sentiment and learn the popular will. The American revolution 



ITS ORIGIN AND PROGRESS. 23 

was inaugurated in town meeting, and the history of that great political 
movement may be seen in the Resolutions passed and Acts done in those 
little assemblies. It was there that the great question was debated, the 
first step taken, the solemn pledge given. Next to the family, the pri- 
mary gatherings of the people exhibit the purest fire of patriotism to light 
up the hopes of the Nation." 

A town meeting, according to the New England system, is an assem- 
bly of the electors of the town, organized as a deliberative body by the 
selection of one of their number to preside as chairman or moderator. 
It is a legislative body composed of the people themselves, and is purely 
a New England institution, growing out of the theory of the early colo- 
nists in church government, — that affairs of common interest should be 
subject to the direction and control of the congregation in their meetings 
duly convened. When it was found necessary to form a body politic, the 
subject of deliberation became extended beyond the affairs of the church, 
to such as concerned the State. Assemblies for religious worship were 
called simply meetings. The place of assembly was called the meet- 
ing house. Meetings for regulation of public affairs were called town 
meetings, as distinguished from religious meetings. The congregation, 
or electors, would be the same in either instance; none were freemen 
unless admitted to the congregation. 

The first town meeting in New England, or meeting of the congrega- 
tion of Plymouth colony, to consider affairs of common interest, it is 
stated, occurred on the 23d of March, 1621, for the purpose of perfecting 
military arrangements, at which a governor was elected for the ensuing 
year, and it is noticed as a coincidence, whether from that source or oth- 
erwise, that the annual town meetings in the New England States have 
ever since been held in the Spring of the year. New York imitated this 
example, and in every northwestern State where the township system 
exists, the annual town meeting or election of town officers occurs like- 
wise in the Spring of the year, either in March or April. 

The electors under the New England system are not only empowered to 
elect all town officers at their stated annual town meetings, but they have 
power to enact by-laws and ordinances for the regulation of town affairs, 
and to give direction in numerous instances to town officers concerning 
the discharge of their duties. But under the Ohio system, the electors 
have no such power. They are empowered to meet annually and elect 
township officers, but have no power to make by-laws or to give direc- 
tions to the officers whom they elect, for any purpose whatever. Their 
authority ends with the election of township officers. 

The State of Indiana has been more stubborn in its resistance to town- 
ship organization than the neighboring State of Ohio. The early inhabi- 
tants of Indiana were largely from Kentucky, or those States that adhered 
to the county system. The people were called "Hoosiers," and were 
marked as well for their frontier simplicity of life and manners, as for 
their prejudices against the institutions of the Eastern States. To them 



24 TOWNSHIP ORGANIZATION 8YSYEM. 

the term ' ' Yankee ' ' was synonymous with an outlaw, and anything- called 
a " Yankee invention " was to be abhorred. 

The county system was here adopted at the beginning of the government 
without modification. But as the influences of eastern immigration 
increased, these early prejudices became relaxed, and a species of the town- 
ship system has been adopted of the nature of that existing in Ohio, but 
more limited in its importance. The counties, as in Ohio, are a species of 
corporation, whose affairs are in like manner committed to the manage- 
ment of three commissioners. The commissioners have authority to divide 
the county into such number of townships as the convenience of the citi- 
zens may require. Each township being a body politic and corporate, 
the affairs of the township are entrusted to one trustee, elected by the 
voters of the township on the first Monday in April, annually,, who is the 
sole township officer. His duties are to receive and disburse the funds of 
the township; to take charge of its educational affairs, and to superintend 
the repairing of public roads. He is one of the inspectors of elections, is 
overseer of the poor and fence- viewer of the township. His most impor- 
tant duties, such as the levy of taxes on the property of the township, are 
performed with the advice and concurrence of the board of county com- 
missioners. Indiana like Ohio, has no such institution as town meeting. 

The State of Michigan was the first of the northwestern States to adopt 
a regular and unqualified system of township organization, being the same 
in its general features as that existing in New York, and known as the 
New York system. In this State a large proportion of the population at 
the time of the formation of the government, were emigrants from the 
State of New York. Township organization was adopted without a con- 
test, and as a natural consequence the New York system was preferred. 
Each county is created a body politic and corporate in express terms, with 
more extensive powers than counties have in Ohio or Indiana. The affairs 
of the county are managed by a county board, whose powers and duties 
are defined, and extended to many objects which in Ohio and Indiana are 
exercised by the State legislatures. This board is styled the hoard of 
supervisors, and is composed of one delegate from each organized town- 
ship, called supervisor of the town, with additional representation in case 
of populous cities. This board forms a deliberative body, conducting its 
proceedings according to parliamentary rules and usages, and is some- 
times styled the county legislature. Its duties, in their nature, are both 
legislative and executive, or ministerial. 

The township is sovereign and supreme within the scope of the powers 
granted, but the powers are not as extensive as those reserved to towns 
in New England, and, unlike the New England system, there is no execu- 
tive head for general purposes in administering public affairs, as the board 
of select- men. The officers of the township are one supervisor, who is ex 
officio a member of the county board, a township clerk, a treasurer, a 
board of school inspectors, directors of the poor, assessors, board of com- 
missioners of highways, justices of the peace and constables, all of whom, 
except constables, have various duties assigned them in the management 



ITS ORIGIN AND PROGRESS. 



25 



of township affairs. The officers of the township are elected annually, by 
the electors thereof, except justices of the peace, whose term of office is 
four years, commissioners of highways three years, and school inspectors 
two years, being" so arranged or classified that the the term of the incum- 
bent of one of these several officers expires annually. The town meeting 
exists in Michigan, and is conducted in the manner of the New England 
system, the supervisor of the town acting as moderator. The annual 
meeting is on the first Monday in April. Each township is made a body 
corporate, with the usual powers granted to such corporations. The 
grant of power to the inhabitants at town meeting is given in general 
terms, and in the exercise thereof is left largely to their discretion. The 
electors have authority to vote sums of money, not exceeding such 
amounts as are limited by law, as they may deem necessary for defraying 
proper charges and expenses arising in the township. They have author- 
ity also to make all such^orders and by-laws for restraining Cattle and 
other animals from going at large in the highways, and for directing and 
managing the prudential affairs of the township, as they shall judge 
most conclusive to the peace, welfare, and good order thereof. 

The supervisor is the chief officer and representative of the township, 
and it is his duty to prosecute and defend all suits in which the township 
is interested. The township clerk keeps the records of the township, and 
the treasurer takes charge of its funds. The establishment, vacation and 
repair of public roads is committed to the three commissioners of high- 
ways. The supervisor, the two justices of the peace whose terms of office 
soonest expire, and the township clerk, constitute a township board for 
examining" and auditing the accounts of the town. Their action in this 
regard is required to be reported to the next annual town meeting. 

The State of Wisconsin was next in order in adopting township organ- 
ization. It commenced while in its territorial condition with the county 
system. But like the State of Michigan, the inhabitants becoming 
mostly of New York emigration, the township system of that State, with 
some modifications, became adopted. Counties are created bodies politic 
and corporate with much the same powers as counties in the State of 
Michigan ; the county board was originally formed in like manner, but 
became changed a few years since to representation by districts; each 
district being comprised of two or more towns, thereby greatly reducing 
the number composing the board. The plea for this change was the 
reduction of expenses in the per diem of members. 

Each town is made a body corporate, with similar powers of townships 
in the State of Michigan. The town officers are three supervisors, one of 
whom is designated as chairman, a town clerk, a treasurer, four justices 
of the peace, as many constables as the electors may determine at town 
meeting, not exceeding three, one assessor, a sealer of weights and 
measures, and one overseer of highways for each road district in the town. 
The electors are empowered to vote money for the support of common 
schools, for the repair and building of roads and bridges, for the support 
of the poor, and for defraying proper town charges and expenses. They 



/ 



26 TOWNSHIP ORGANIZATION 



have the same power to make orders and by-laws, and for the like pur- 
poses, as the electors of townships in the State of Michigan. Town 
officers are elected annually by the electors of the town, except justices of 
the peace, whose term is four years, classified so that the term of two of 
them shall expire every two years. The three supervisors are the execu- 
tive head of the town and correspond to the selectmen of towns in New 
England. They are the commissioners of highways, and overseers of the 
poor of the town, and have the general charge of its fiscal affairs. The 
town meeting exists hi Wisconsin the same as in Michigan. The chair- 
man of the town board of supervisors is the moderator. The annual 
town meeting is held on the first Tuesday in April. 

Illinois was the next State in the order of time to adopt township organ- 
ization. The history of the introduction and perfection of the system in 
its present form, shows a contest amounting to bitterness. Illinois was 
once a county of" Virginia, and when it passed into a territorial organi- 
zation, it retained the Virginia notions of government. The introduction 
of township organization was a compromise in the constitution, as revised 
in 1848, wherein it was directed that the General Assembly should provide 
by general law for a township organization, under which any county 
might organize whenever a majority of the voters of such county at any 
general election should so determine. The General Assembly at its first 
session thereafter made provision as directed, and in doing so adopted the 
New York system, modified, however, to a certain extent, from being 
necessarily engrafted upon the existing county system. Most of the coun- 
ties north of the Illinois river promptly availed themselves of this provis- 
ion, and adopted the township system. As a coincidence, it is noticed, 
however, that the inhabitants of those counties were mostly from New 
.York and the New England States. Other counties have followed their 
example from time to time, until of the one hundred and two counties of the 
State, seventy-eight of the number have accepted township organization. 

The system adopted in Illinois, as perfected at the present time, is essen- 
tially the same as in Michigan. Counties and towns are bodies corporate 
and politic, with like powers; the county board is formed in the same 
manner; the town officers are the same with the exception of town treas- 
urer, and who have the same authority and duties as provided by the laws 
of Michigan. The town meeting exists in Illinois in the form established 
in Michigan and Wisconsin, except that the moderator is chosen by the 
electors assembled. The annual town meeting is held on the first Tues- 
day in April. The electors have the like powers at their town meetings 
to make orders and by-laws as provided by the statutes of Michigan and 
Wisconsin. The Supreme Court of Illinois have construed the statute of 
that State liberally in this regard for the purposes intended. 

It is to be observed that in none of the newer States has township 
organization been adopted without a contest. In this regard Minnesota 
affords a peculiar example of vacillation. While in its territorial con- 
dition, the county system existed; on becoming a State the township 
organization was adopted by copying the statutes of Illinois on the subject 



ITS ORIGIN AND PROGRESS. 27 

in their crude condition, as then existing-. After the lapse of about two 
it returned to the county system, designedly expunging- from their 
statutes every vestige of township organization. But the clamor of the 
people, who were mostly of New England origin, compelled a restoration 
of the township system, which still continues. The system lastly adopted 
is essentially the same as that existing in Wisconsin, with some features 
of the Illinois statute, originally borrowed from New York. The town 
meeting is organized and conducted the same as in Illinois . 

The State of Iowa, whilst it claims to have learned wisdom by experi- 
ence, and at one time partially recognized the excellence of the princi- 
ples of the township system, is but a shade removed from the prejudices 
of Indiana. In organizing the State government it adopted the Indiana 
township system, except it provided for three trustees and a township 
clerk, and authorized the holding of township meetings. Counties were 
made bodies corporate for civil and political purposes, but the management 
and control of the public and fiscal affairs of the county was committed 
solely to one person called the county judge. The result was, improvident 
management in the erection of county buildings, and disregard of econ- 
omy in public affairs, whereby serious and oppressive burdens were visited 
upon the tax-payers; as a remedy for the evils complained of, the people 
demanded that the county board be increased in numbers, and con- 
structed upon the representation principle, so that the members would be 
directly accountable to the people for their action. Whereupon the 
State swung to the other extreme; not only inaugurating the New York 
system of a board of supervisors, composed of one delegate from each 
township,-but provision was made for further representation by additional 
delegates, according to increased population. Thereupon that interest 
which had shaped the original policy of entrusting public affairs to the 
fewest hands possible, found opportunity for portraying the burdens 
which were to follow the expense of so numerous a body of public officers. 
This argument, whether the evils urged were real or imaginary, suc- 
ceeded, and the county board became reduced to three in number, leav- 
ing the people of each county to increase the number, in their discretion, 
to five or seven members, the style of the board still being The Board of 
Supervisors. 

In 1871, the State of Missouri, becoming inhabited largely — within a 
few years preceding — by people from the more Northern and Eastern States, 
succeeded in passing an act for adopting township organization by vote 
of counties in a similar manner, as provided by the statute of Illinois, the 
act for establishing the system being copied nearly verbatim from the 
laws of that State. But being engrafted on the existing county system 
of Missouri, it renders their township organization at the present time 
quite imperfect. A number of counties have voted favorably and organ- 
ized under the law, and continued effort is being made to make the system 
general throughout the State. (1) 

(1) The Legislature of Missouri, at its session, 1877, repealed the Township Organ- 
ization Act. and returned to the county system. 



28 TOWNSHIP ORGANIZATION SYSTEM. 

Of the remaining States, winch are classed as among the newer States, 
there are none which have adopted the township system that may be 
called township organization. In many of them, however, the counties 
are subdivided into districts — which are called townships for school pur- 
poses; the same as election districts and the like in the State of Indiana. 

It is noticeable, from the account here given of township organization 
in the newer States, that in its progress it has in general met with vigor- 
ous resistance. Conceding this system to be what eminent publicists and 
statesmen have claimed for it — that it is the life and mainspring of Amer- 
ican liberty — we shall look with much concern for the causes which have 
inspired this resistance. They are but the result of prejudices through 
early education and example, springing from remote circumstances to 
which we have here had occasion to allude, and which distinguishes be- 
tween the two branches of the Anglo-American family, observed by De- 
Tocqueville to have grown up, without entirely commingling. 

And whilst one may continue to contend for that system which removes 
the administration of public affairs from the immediate influence of the 
people, through the institution of these local organizations, the spirit of 
the other will as earnestly insist that these small independent republics, 
with their unlimited sovereignty in matters of local concern, are the cra- 
dles and nurseries of that habit of political debating and acting which 
are essential in the training of intelligent and useful citizens. 



LAWS OF ILLINOIS 

BELATING TO 

TOWNSHIP ORGANIZATION 

AND 

MANAGEMENT OF COUNTY AFFAIRS. 



DIVISION I. 
TOWNSHIP ORGANIZATION ACT. 

ARTICLE I. 

HOW TOWNSHIP ORGANIZATION ADOPTED. ^Fo^cTmar 

4, 1874. 

Section 1. At any general election that may be ho-lden in V- ^ Y ' 
the several counties in this State, the qualified voters in any V ote n for or 1 * 7 
county may vote for or against township organization in such J§J;5f* n 
county. (1) 

(I) The Constitution concerning township organization, Art. 10, provides as 
follows : 

Sec. 5. The General Assembly shall provide, by general law. for township organi- 
zation, under which any county may organize whenever a majority of the legal 
votersof such county, vo'ting at any general election, shall so determine, and whenever 
any county shall adopt township organization, so much of this Constitution as pro- 
Tides for the management of the fiscal concerns of the said county by the board of 
county commissioners may be dispensed with, and the affairs of said county maybe 
transacted in such manner as the General Assembly may provide. And in any 
county that shall have adopted a township organization, the question of continuing 
the same may be submitted to a vote of the electors of such county at a general 
election, in the manner that now is or may be provided by law ; and if a majority 
of all the votes cast upon that question shall be against township organization, then 
such organization shall cease in said county ; and all laws in force in relation to 
counties not having township organization, shall immediately take effect and be in 
force in such county. No two townships shall have the same name, and the day of 
holding the annual township meeting shall be uniform throughout the State. 

Sec 6. At the first election of countv judges under this Constitution, there shall be 
elected in each of the counties in this* State, not under township organization, three 
officers, who shall be styled " the board of county commissioners." who shall hold 
sessions for the transaction of county business as shall be provided by law. One of 
said commissioners shall hold his office for one year, one for two years, and one for 
three years, to be determined by lot ; and every year thereafter one such officer 
shall be elected in each of said counties for the term of three years. 

> Sec. 7. The county affairs of Cook county shall be managed by a board of commis- 
sioners of fifteen persons, ten of whom shall be elected from the city of Chicago, 
and five from towns outside of said city, in such manner as may be provided by law. 



30 



TOWXSHIP ORGANIZATION ACT. 



[div. I 



Question of 
adoption to be 

su omitted on 
petition. 



Sec. 2. The county board, on petition of fifty or more legal 
voters of said county, shall cause to be submitted to the voters 
of the county the question of township organization under this 
act, by ballot, to be written or printed, or partly written and 
partly printed, '-'for township organization," or " against town- 
ship organization," to be canvassed and returned in like man- 
ner as votes for county officers. (1) 

Sec. 3. The county clerk shall enter an abstract of the 
returns of said election, to be made out and certified as in elee- 
mJra?to ertif7 t * ons ^ or count y officers, record the same at length upon the 
records of the county, and .shall certify the same to the auditor 
of public accounts. 

Sec. 4. If it shall appear by the returns of said election, 
that a majority of the legal voters of said county are for town- 
ship organization, then the county so voting in favor of its 
adoption shall be governed by, and subject to the provisions of 
this act on and after the first Tuesday of April next succeed- 
ing : Provided, that a majority of the voters voting at such 
election shall be taken and deemed a majority of the voters of 
said county. (2) 



Election 
returns. 



auditor. 



Majority vote 
required. 



Proviso as to 
majority 



(1) Form of Petition to County Board for Submission of Question of Town- 
ship Organization. 
To the honorable the county board of the county of , State of 

Illinois : 

The undersigned, legal voters of said county of r , would re- 
spectfully represent, that in their opinion the people of said county 
desire to adopt township organization ; they do therefore petition 
your honorable board to cause to be submitted to the qualified voters 
of said county, at the next general election, to be held on the first 
Tuesday after the first Monday in November next, the question of 
township organization, that they may vote upon the adoption thereof. 

And vour petitioners will ever pray. 

Dated this day of , A. D. 18—. 

The pozcer to hold elections for adoption of township organization flows 
from the action of the county board. It is not vested in the clerk or other officer ; 
their acts, unauthorized, would confer no power to hold an election : but when tho 
body has acted who possess the power, and the officer acting under their require- 
ments gives the notice, then the'authority of the law has been invoked and pruperly 
put into action. The statute does not require the order of the county board, sub- 
mitting the question of township organization to a vote of the people, to be spread 
on the record. If this is neglected, the subsequent action of the county board to that 
effect sufficiently proves the making of suchorder. Theneglect of the clerk to enter 
the order should not have the effect to defeat the will cf the people. Ptople ex rel. v. 
Garner, 47 111. R., 24.7. 

(2) TJie right of a county to adopt township organization. under the pro- 
visions of our Constitution, is expresslv made to depend, upon an affirmative vote of 
a majority of all the citizens within "the county entitled to vote on the question. 
The legislature does not possessthe power to provide any other mode of township or- 
ganization than as prescribed bv the Constitution. The power of the county board 
over the affairs of the counrv, continues until the township organization is adopted by 
an affirmative vote of a majoritv of all thelegal voters of a county. People x. Brown et 
al„ 11 111. R.. 478. This decision was made under the township act of 1849. which 
was substantia.lv the same as this act on the subject in question, except that by this 
act it is provided that a majoritv of the voters voting at such election shall be taken 
and deemed a majoritv of the voters of said county; which is settling the question 



ART. I.] HOW TOWNSHIP ORGANIZATION ADOPTED. 31 

Sec. 5. The county board shall, at its next session, appoint county board 
three commissioners, residents of the county, to divide the JjjgJ^JJJJ 
county into towns. The commissioners so appointed shall be divide county, 
paid for their services by the county. (1) 

Sec. 6. The commissioners so appointed shall proceed to Manner of 
divide such county into towns, making them conform to thej^wns." 811110 
townships according to government surveys. Fractional town- Fractional 
ships may be attached to adjoining towns, where the number townships. 
of the inhabitants or the amount of territory thereof shall not 
be sufficient for a separate town. Where a township shall have Townships may 
too few inhabitants for a separate organization, then such town- together. 
ship may be added to some adjoining town, or divided between 
two or more towns, for the time being. And when a creek or riveTdYvMes!* 
river so divides a township that it is inconvenient for transacting 
town business, then such creek or river may be made the town 
boundary, and the fractions so formed may be disposed of as 
other fractional townships. (2) 

of evidence, by wnich to determine the majority of legal voters of the county at the 
time of taking the vote. 

It is a question of some difficulty to determine how it may be ascertained whether 
the majority of the voters of the county have cast their votes in favor of township 
organization. The registry list of voters is no better evidence of the number of legal 
voters in a district or county than the poll-books. The vote cast is prima facie evidence 
of not only the result of the election, but also of the number of legal voters in the 
county. The registry lists do not rebut or overcome this presumption. Personswhose 
names are put upon'the registry list, but who do not appear and vote at an election, 
are presumed to have left the election district, and therefore no longer legal voters 
therein. TJie People ex rel. v. Garner, 47 111. R., 247. 

Although the legislature have no power to impose a general township or- 
ganization upon the people of a county, in any other manner than that provided 
m the Constitution 'see People v. Brown. 11 111. R., 478), which is by vote of the peo- 
ple. Yet it seems, in the absence of any prohibition, the legislature may provide 
for the incorporation of a town for municipal purposes, six miles square in extent, 
as well as a village with less territory. Greeley tt al. v. The People. CO 111. R., 19. 

(1) There is no appeal from the order of the count?/ board in declaring town- 
ship organization adopted, or in appointing commissioners to divide the county into 
towns. The law in regard to appeals from orders of that board does not apply to 
that case. Where the question of township organization was submitted and declared 
adopted, and cornrnii>sioners appointed to divide the county into towns, but no 
action was had, and the matter was again submitted alter the lapse of several vears, 
and it was again declared in the affirmative, and commissioners, to divide the county 
into towns, were again appointed who performed their duties, and the county or- 
ganized accordingly : Held, that the proceeding was valid. That if the last election 
was invalid, the commissioners would be regarded as being appointed under the 
first vote, which would be regarded as still in force for that purpose, notwithstanding 
the lapse of time and the second submission. People ex, rel. v. Garner. 47 111. R., 247. 

(2) In the division of a canty into towns by the commissioners, it is the 
intention Of the law that it shall be made in accordance with the lines of the survey- 
ed or government townships so that each government township shall be set off and 
erected as an organized town under this act. and it is the dntv oi' the commissioners 
to divide the county accordingly: it would seem that they have not authority to 
divide it otherwise. The instances where they can depart from this rule are clearly 
expressed in theabove section. The powers of the board of supervisors subsequently 
to create new towns and change town boundaries, are not thus restricted. See Seel, 
Art. Third, past, p. 36. 

In dividing tf." count?/ into towns the law has laid down a rule to beobserved. 
If the commissioners depart from what is believed to be the intention of the law, 
and exceptions are taken to their report on return. Ihe county board would perhaps 
have power to reject it, and recommit the matter for further action of the commis- 
sioners. If this is not done the report will be regarded as regular, and no question 
can thereaaer be raised to defeat it in that regard. People ex rel. v, Garner, 47 111, 
R.,247. 



commissioners. 



32 TOWXSHIP ORGANIZATION ACT. [dTV. I. 

Naming of Sec. 7. Towns shall be named in accordance with the ex- 

towns, press wish of the inhabitants of the town, and if there shall 

not be a degree of unanimity as to the name, the commission- 
Prcmso ers may designate the name : Provided, that the county board 

name S s ms shall have power to change the name of any town in their re- 
spective counties, upon a petition of a majority of the voters 
Two towns f gajd town: And provided further, that no two towns in 

same name. . _. * J ' 

the estate shall have the same name. 
Report of Sec. 8. The commissioners so appointed shall make a writ- 

ten report of their proceedings, giving the names and bounds 
of each town, and present such report to the county clerk on 
or before the first day of March next succeeding. (1) 
county clerk to Sec. 9. The county clerk shall, within thirty days after re- 
auditor. ceiving such report of the commissioners, transmit by mail to 

the auditor of public accounts of this State an abstract of such 
report, giving the bounds of each town and the name desig- 
nated, and said clerk shall record, in a book kept for that pur- 
pose, the report of said commissioners, 
when two Sec. 10. If the auditor of public accounts, on comparing 

afik^how * ne abstracts of the reports from the several counties, shall find 
corrected. that any two or more towns are named alike, he shall so inform 
the clerk of the county which last adopted such name, and the 
county board of such county shall, at its next meeting there- 
after, adopt for such town some different name ; and when such 
name shall be adopted, the county clerk shall inform the audi- 
tor of public accounts, as before directed. 

(1) Form of Report of Proceedings of Commissioners appointed to divide 

County into Towns. 
To the honorable the county board of the county of , State of 

Illinois: 

The undersigned, commissioners appointed by said board, at the 

December term thereof, A D. 18—, to divide said county of 

into towns, agreeably to the statute to provide for township organiza- 
tion, respectfully report that they have performed the duty assigned 
to them, and have divided said county into towns, and given names 
thereto as follows, to wit : 

All that territory known and described by government survey as 
township number — , of range number — , is erected into a town to 
be called the town of . 

All that territory known and described, etc., r 'continue by describing 
each town as aforesaid]. 

All of which is respectfully submitted. 

A.B.,) 

C. D., [■ Commissioners. 

E.F.J 

Towns, although duly described and named by the commissioners, would not 
attain to the full power "of such corporations until a completion of their organiza- 
tion bv the election of town officers. Wells v. Burbank, 17 N. Hamp. R., 393. 

The'Supreme Court will take judicial notice of the fact that a county has adopted 
township organization. County of Bock Island v. State, 31 111. ft., b±6 



ART. I.] HOW TOWNSHIP ORGANIZATION ADOPTED. 33 

Sec. 11. The auditor of public accounts shall keep a record Record of 
of the names and boundaries of the several towns. names. 

Sec. 12. The county board shall, at least twenty days be- Place for 
fore the first Tuesday in April next after the adoption of town- town^ecSon. 
ship organization, designate some central and convenient place 
in ouch town for the holding of the first town election, and 
shall also appoint three suitable electors of the town as judges 
of said elections. 

Sec. 13. The county clerk shall thereupon make out notices, county clerk to 
stating the time (which shall be the first Tuesday of April first town 
thereafter) and place for holding the first town election, and elect1013 " 
the names of the judges of election so appointed, and deliver t 
such notices to the sheriff of the county, who shall cause the . 
same to be posted in not less than three of the most public posted, 
places of the town, and not less than fifteen days before the 
time of the holding of such election. (1) 

Sec. 14. The first town election shall be conducted in the Elections how 

, , /ON conducted. 

same manner as other town elections. (z) 

Sec. 15. The justices of the peace, and constables residing Justices and 
in any town organized pursuant to this act, shall continue to continue in 
hold their office for the time for which they were elected, and office - 

(1) Form of Notice by County Clerk for first Town Election. 

TOWN ELECTION NOTICE. 

Public notice is hereby given that the first town election under 

township organization for the town of , in the county of , 

and State of Illinois, will be held in said town on Tuesday, the * 

day of April, A.D. 18 — , being the first Tuesday in said month, at 
[gire the place designated for holding the election'], for the election of 
[give the title of the' several offices to be filled'], which election will be 
opened at eight o'clock in the morning, and continue open until 
seven o'clock in the afternoon of that day. 

The names of the judges of election appointed by the county board 
are C. D., E. F. and G. H. 

Dated at , this day of , in the year of our Lord 

one thousand eight hundred and . 

A. B., County Clerk. 
^ For list of town officers to be elected at the town election, see Article 7, Sec. 1» 
post, p. 61. 

For manner of conducting toivn elections, see Article 7, post, p. 61. The. 
naked term "town election" fails to express what is evidently intended by the 
above section. Town elections, as such, have no separate existence apart from the 
town meeting. A town meeting is an assemblage or congregation of the legal voters 
or electors of the town for the transaction of all matters that may come before the 
meeting within the powers of the electors; one of these is the election of town 
officers. Thus the election of town officers, or town election, is a mere incident to a 
town meeting. The term " first town election," as used in this article, must, there- 
fore, be considered as comprehending the whole subject of a town meeting. 



34 



TOWNSHIP ORGANIZATION ACT. 



[DIV. I. 



Elected in new 
towns. 



shall be considered as justices and constables of such town ; 
but if the number of justices of the peace and constables 
allowed by law shall not reside in any such new town, the elec- 
tors thereof may, at the first town election, elect a sufficient 
number of justices and constables, who shall hold their offices 
until the next election at which justices of the peace and con- 
stables may be elected, as provided by law, and until their suc- 
cessors are elected and qualified. (1) 

Sec. 16. Of the commissioners of highways elected at the 
first election, one shall hold his office for one year, and one for 
two years, and the other for three years, to be determined be- 
tween them by lot before entering upon the duties of their 
office, and until their respective successors are elected and 
qualified. (2) 

Sec. 17. If any town shall refuse or neglect to organize and 
elect town officers, the county board of the county may order 
another election for that purpose, and state the time and place 
of holding the same, notice of such election to be given as re- 
quired for the first election. 

Sec. 18. If the town shall not then organize and elect offi- 
cers, the board may, at any regular or special meeting, appoint 
the necessary officers for such town, and the persons so appointed 
shall hold their offices until the next annual town meeting, and 
until their successors are elected or appointed and qualified. 

Sec. 1 9. If the persons so appointed shall fail to qualify, as 
required by law, or if, at any time after the organization of 
the town, the electors thereof refuse to elect or appoint offi- 



Comrnissioners 
of highways, 
term decided 
by lot. 



When towns 
refuse to 
organize. 



When county 
board may 
nppoint town 
officers. 



When town 
ofticeVs fail to 
qualify. 



(1) The above section sets out upon the principle that justices of the peace 
and constables thus elected are elected as if filling vacancies, the term expir.ng at 
the same time as other justices of the peace and constables in the county. The full 
term of justices and constables fixed by the Constitution is four years. Const., Art. 
7, Sec. 32. 

(2) TJie law has not provided any mode by which the three persons elected 
commissioners of highways shall conduct the proceeding by lot to determine the 
term of office of each. Thev are left to choose their own mode in this regard. 
When they have made their determination, in order that some proper record thereof 
may exist, it would be advisable to have their determination reduced to writing, 
and filed with the town clerk. The following may be the form : 

Form of determination of Commissioners of Highways by lot for term of 

Office. 
County, 



Town of 
We, A. B., C. 



..} 



D. and E. F., being elected commissioners of high- 
ways for said town of at the first town election in said town, 

have determined between us by lot that the said A. B. shall hold his 
office for three years, the said C. D. for two years, and the said E. F. 
for one year. 

Witness our hands, this day of . A.D. 18—. 

A. B., 
C. D., 
E.F. 



ART. IT.] HOW DISCONTINUED. 



cers, or to exercise the powers required by law, the county Tov . n mav be 
hoard may annex such town to an adjoining town, and the annexed to 
town so annexed shall thereafter constitute a part of the town town, 
to which it is annexed. 

Sec. 20. When, in any county under township organiza- when territory 
tion, there is any territory co-extensive with the limits of a£3 st ff c e 
city situated therein, and which is not included within any name "dis- 
organized town, such territory shall constitute a town by the 
name of such city, and all the provisions of this act shall 
apply to the town so constituted, the same as if it had been 
organized in the manner provided in this act in the case of 
the organization of new towns. 

ARTICLE II. 
HOW DISCONTINUED. 

Section 1. Upon the petition of at least cne-fifth of the Petition of one- 
legal voters of any county having adopted township organiza- voters f of egal 
tion, to be ascertained by the vote cast at the last preceding- county to 

' . , , . .J Tin -i -I county board. 

presidential election, the county board snail cause to be Sub- 
mitted to the voters of such county, at the next general elec- Questionio be 
tion, the question of the continuance of township organization, the voters of 
to be voted on'by ballots, written or printed, or partly written tne county, 
and partly printed, " For the continuance of township organi- 
zation," or "Against the continuance of township organiza- 
tion;" notice to be given, and the votes to be canvassed and 
returns made in like manner as in this act provided in refer- 
ence to a vote on the adoption of township organization. 

Sec. 2. If it shall appear, by the returns of said election, Majority vote " 
that a majority of the votes cast on that question, at said elec- t£me township 
tion, are against the continuance of township organization, organization. 
then such organization shall cease in said county, as soon as a 
county board is elected and qualified ; and all laws relating to 
counties not under township organization shall be applicable 
to such county, the same if township organization had never 
been adopted in it. 

Sec. 3. V> T hen township organization shall "cease in any when 
county, as provided in this act, a special election shall be held o?gj53»Sion 
in such county on the first Monday of January next following; ceases, county 

« ,, J , . . J ,. . J . ,, . , , , =>' government to 

tor three county commissioners, one of whom shall hold his be resumed, 
office until the next general election of county commissioners, 
one until a year from the next general election, and the other 
until two years after the next general election, to be deter- 
mined by lot, and until their successors are elected and quali- 



36 



TOWNSHIP ORGANIZATION ACT. 



[DIV. I. 



County board 
elected to 
assume duties 
of office. 



fied ; and at every yearly general election after such, special 
election, one such officer shall be elected. 

Sec. 4. The county board elected at the special election, as 
provided in the next preceding section, shall assume the duties 
of their office on the first Monday of February next after their 
election, and shall be the legal successors to the county board 
of such county, and shall have all the rights and emoluments, 
and be subject to all the liabilities as provided in other cases 
of counties not under township organization. 

Sec. 5. When township organization is discontinued in any 
county, the records of the several towns shall be deposited in 
the county clerk's office, and the county commissioners of the 
county shall have power to close up all unfinished business of 
the several towns, and sell and dispose of any of the property 
belonging to the town, for the benefit of the inhabitants thereof, 
as fully as might have been done by the towns themselves, and 
to pay all the indebtedness of any town existing at the time 
of such discontinuance, and cause the amount thereof, or so 
much as may be necessary, to be levied upon the property of 
the town. 



Kecords, how J 
disposed of. 



Unfinished 
business closed 
up. 



To\vu indebt- 
edness to be 
paid 



AETICLE III. 

OP THE ALTERATION OF BOUNDARIES, AND DIVISION OF TOWNS 
AND TOWN PROPERTY. 



County board 
may alter 
boundaries and 
create new 
towns. 



Petition of 20 
voters. 



Notice to be 
posted. 



When to be 
published. 



Proviso as to 
incorporated 
towns. 



Section 1. The county board of eacn county shall -have full 
and complete power and jurisdiction to alter the boundaries of 
towns, to change town lines, and to divide, enlarge and to 
create new towns in their respective counties, to suit the con- 
venience of the inhabitants residing therein, but no new town 
shall be created under the provisions of this act of less terri- 
tory than seventeen square miles, nor unless there shall be at 
least fifty legal voters residing in such new town, nor unless 
at least twenty of the legal voters of such town shall petition 
for such alteration ; nor shall any new town be made, or any 
town divided, or the boundaries of any town changed by the 
county board without notice thereof having been given by post- 
ing up notices in not less than five of the most public places 
of the town interested, or if several towns are interested, in 
each of them, at least sixty days before the final action of the 
board, and also by publishing such notice at least three times 
in some newspaper published in the county wherein said towns 
are situated, if any shall be published therein : Provided, that 
no incorporated town shall be divided, except consent thereto 



ART. III.] ALTERATION OP BOUNDARIES, ETC , 37 

is given by a majority of all the electors voting at a general 
annual election in said town — notice that the question of divid- Notice. 
ing said town will be submitted to the legal voters thereof 
having been given by the county clerk at the same time and 
in the same manner as the notice of said general annual 
election. (1) 

Sec. 2. When a town is divided into two or more towns, a Election in 
new election shall be ordered in each of the new towns by the nev 
county board, and the time and place of holding the election 
shall be fixed, and judges of election appointed, and notice 
given in the same manner as required upon the first organiza- 
tion of towns : Provided, that when parts of several towns are Proviso, when 
taken to make a new town, it shall not be necessary to order necessary. 

(1) The alteration of boundaries, changing town lines" or enlarging towns, 
would seem to signify about the same thing in either case, being only differently 
expressed. 

Form of Petition for alteration of Boundaries, change of Town lines, or 

enlarging a Town. 
To the honorable the county board of the county of , State of 

Illinois : 

The legal voters of the town of , in said county, do petition 

your honorable board to alter the boundaries of said town of , 

as follows [here set forth the alteration desired]. Such alteration of 
boundaries will not affect any town so that the territory thereof will 
be less than seventeen square miles. 

And your petitioners will ever pray. 

The words change to ion lines, or enlarge a town, can be substituted in lieu of the 
words alter the boundaries of, in the foregoing form, when deemed more appropriate. 

Form of Petition for dividing a Town. 
To the honorable the county board of the county of , State of 

Illinois 

The undersigned legal voters of the town of , in said county, 

do petition your honorable board to divide said town as follows [here 
set forth the line of division as desired]. That the territory within the 
following boundaries [state the same] shall continue to form and exist 
as the said town of , and that the territory within the follow- 
ing boundaries [state the same] shall form a new town, to be named 

the town of ; that the territory of each of said towns will not 

be less than seventeen square miles. 

And your petitioners will ever pray. 

The foregoing form can be changed to suit the occasion of the creation of a 
new town. 

The law contemplates, in case of alteration of boundaries, that it shall be 
petitioned for by at least twenty legal voters of each town affected. 

Form of Notice of creating new Town, dividing Town, or changing 
Boundaries of Town. 

Public notice is hereby given that petitions will be presented to the 

county board of the county of , State of Illinois, at the session 

thereof to be held at , on the day of , A.D. 18—, 

praying for [state what is petitioned for as set forth in the petitions] ; and 
that final action of the board will be asked, on said petitions, at the 
time of presentation thereof. 

Dated this day of , A.D. 18—. 



38 



TOWNSHIP ORGANIZATION ACT. 



[div. I. 



Division of 
town not to 
affect taxes. 



Division of 
property of. 



an election in the towns from which territory is taken ; but if 

any of the officers thereof shall continue to reside in the new 

town, his office shall be declared vacant, and filled as in other 

cases of vacancy. 

officers in new Sec. 3. The officers elected or appointed at any such town 

unSn^° ld meeting shall hold their offices until the next annual town 

meeting. meeting, and until their successors are elected and qualified ; 

commissioners except that one of the highway commissioners so elected shall 

ig ways, ko]^ kj s ffi ce until the next annual meeting, one until the 

second annual meeting, and the other until the third annual 

meeting, to be determined between them by lot, and until their 

successors are elected and qualified, and except that any justice 

of the peace or constable so elected shall hold his office until 

the next general election of justices and constables, as fixed 

by law. 

Sec. 4. The division or alteration of a town, after the 
making out of the assessor's books in any year, shall not in 
any manner affect the assessment or collection of the taxes 
assessable or collectable in that year, but the same may be 
assessed and collected in the same manner and by the same 
officers as if no division or alteration had taken place. 

Sec. 5. When a town possessed of real estate shall be divi- 
ded into two or more towns, the supervisors and assessors of 
the several towns constituted by such division shall meet as 
soon as may be after the first town meetings subsequently held 
in such towns, and when so met shall have power to make such 
agreement concerning the disposition to be made of such town 
property and the apportionment of the proceeds as shall be 
equitable, and to take all measures and execute all conveyances 
which may be necessary to carry such agreement into effect. (1) 

(1) Form of Agreement by Supervisors and Assessors, in case of Division of 
Town, concerning Disposition and Apportionment of Real Estate. 

This agreement, made this day of , A. D. 18 — , by A. 

B., supervisor, and C. D., assessor of the town of , on the part 

of said town, and E. F., supervisor, G. H., assessor of the town of 

, on the part of said town of , in the county of , 

and State of Illinois, witnesseth . That whereas the town of , 

which formerly comprised the territory now composing the afore- 
said towns of and , has lately been divided by proper 

authority, into two towns, named and styled as aforesaid, [or as the 

case may be], and whereas said town of was at such division 

thereof seized of the following real estate, t a wit : [here describe the 
premises]. Now therefore it is agreed by and between said super- 
visors and assessors on the part of their respective towns, that said 
real estate be divided and disposed of for the benefit of said towns, 
as follows: that portion thereof described as follows [here describe it], 

shall be and remain the property of said town of , and the balance 

thereof described as follows [here describe tlie remaining portion of said 



ART. III.] ALTERATION OF BOUNDARIES, ETC. 39 

Sec. 6. When apart of any town possessed of real estate when part of 
shall be annexed to another town or towns, or taken to form a ^o another^" 
part of a new town, the supervisors and assessors of the town town - 
from which such territory is taken, and of the town or towns 
to which the same shall be aimexed, or of which it constitutes 
a part, shall, as soon as may be after such alteration, meet for 
the purpose and possess the powers provided in the last pre- 
ceding section. 

Sec. 7. When a town possessed of or entitled to money , Money and 
rights or credits, or other personal estate, shall be divided org^appo^uoa' 
altered, such personal estate, including moneys, shall be appor- ed - 
tioned between the towns interested therein by the supervisors 
and assessors of such towns according to the amount of taxable 
property in the town divided or altered as the same existed 
immediately before such division or alteration, to be ascertained 
by the last assessment list of such town ; and such supervisors 
and assessors shall meet for the purposes aforesaid as soon as 

premises'], be sold within three months from this date for the highest 
sum which the same can be sold for, and the proceeds thereof be paid 

over to said town of . 

In witness whereof said supervisors and assessors have hereunto 
set their hands and private seals, the day and year first above written. 

A. B., [seal.] 

Supervisor. 

C. D., [seal.] 

Assessor. 

E. F., [seal.] 

Supervisor. 

G. H. [seal.] 

Assessor. 

The foregoing form can be varied to suit the circumstances of each case. What- 
ever agreement is made by the supervisors and assessors, should be reduced to writ- 
ing in proper form, and a copy filed with the town clerk of each town interested. 
When a division of the property is impracticable, it may be appraised by the super- 
visors and assessors, and the town wherein it is situated may pay over to the other 
town its equitable share of the valuation and retain the whole property, when such, 
course is deemed most advisable. It will be seen that the law has clothed the super- 
visors and assessors with ample authority for a proper division of the real estate : it 
has authorized them to make agreement concerning the disposition thereof, and 
such apportionment of proceeds as shall be equitable, and to take all measures and 
execute all conveyances necessary to carry their agreement into effect ; therefore 
when it is agreed that the property or any part thereof shall be sold, the supervisors 
and assessors are authorized to execute the conveyance. A question may arise as to 
who should execute the conveyance, whether the supervisor or assessor of the town 
wherein the real estate is situated, in case of lying all in one town, or whether by 
the supervisors and assessors of the several towns interested. It can do no harm for 
them ail to join in the conveyance. Indeed, such may be the more proper course. 

Form of Deed of Conveyance by Supervisors and Assessors conveying Real 
Estate wliere Town is divided. 

This indenture, made this day of , A. B. 18 — , between A. 

B., supervisor, and C. D., assessor, of the town of , E. F., super- 
visor, and G. H., assessor of the town of , which towns are in the 

county of , and State of Illinois, party of the first part, and L. M., 

of said county and State, party of the second part, witnesseth : That 
whereas said town of has lately been divided by proper author- 



40 TOWXSHIP ORGANIZATION ACT. [dIY. I. 

may be after the first town meetings subsequently held in such 

towns. (1) 
Meeting of Sec. 8. Whenever a meeting of the supervisors and assess- 

Ss P e e ssOTs?ho a w d ors of two or more towns shall be required, in order to carry 
called. j nto e ff ec t £ ne provisions of this article, such meeting may be 

called by either of said supervisors ; but the supervisor calling 

the same shall give at least ten days' notice in writing to all 

ity, and said town of erected therefrom, [or as the case may be], 

and whereas said town of was at the time of such division seized 

of the following real estate [here describe the whole premises'], and 
whereas it was agreed by the supervisors and assessors of each of the 
aforesaid towns, that the following portion of said real estate should 

be disposed of for the benefit of said town of , [or as the agreement 

may be], as being the equitable share thereof to which said town 
would be entitled in consequence of such division, to-wit : [here de- 
scribe the portion of the premises to be disposed of]. Now, therefore, said 

party of the first part, for and in consideration of the sum of 

dollars paid by said party of the second part, the receipt whereof is 
hereby acknowledged, have and do grant, remise, release, convey 
and confirm unto said party of the second part, and to his heirs 
and assigns forever, all the following described premises, lying and 

being in said town of— — , in the county of , and State of Illinois, 

to wit, [here describe the premises to be conveyed.] To have and to hold 
the same, together with all and^ singular^ the appurtenances and 
privileges thereunto belonging or in any wise appertaining, and all 
the estate, right, title, interest and claim whatever which said town 

of •and , or either of them may have either in law or equity, 

to the only proper use, benefit and behoof of the said party of the 
second part, his heirs and assigns forever. 

In witness whereof, said party of the first part have hereunto set 
their hands and seals, the day and year first above written. 
Signed, sealed and delivered \ 

in the presence of J A. B., [seal.] 

Supervisor. 
C D., [seal.] 
Assessor. 
E. F., [seal.] 
Supervisor. 
G. H., [seal.] 
Assessor. 
The foregoing deed should be acknowledged in the usual form. 
(1) The proceedings of the supervisors and assessors ought properly to be 
reduced to writing, as a memorandum showing how and in what manner the money, 
rights, credits, and other personal property is disposed of or apportioned, and how 
existing debts are apportioned, and a copy filed with other papers, if any, with the 
town clerk of such town interested. The following is suggested as a form for such 
writing or memorandum. 

Form of Proceedings of Supervisors and Assessors in apportioning Pro- 
perty in case of Division of towns. 

At a meeting of the supervisors and assessors of the towns of- 

and , in the county of , convened at the office of the town 

clerk of said town of , on the day of , A.D. 18— [if adjourn- 
ments are had state the adjournment,] for the purpose of making agree- 
ment concerning the disposition of the real estate lately belonging to 

said town of , and apportioning the proceeds thereof according 

to law in such cases, in consequence of a division of the original town 



ART. III.] 



ALTERATION OF BOUNDARIES, ETC. 



41 



the other officers of the time and place at which such meeting 
is to be held.(l) 

Sec. 9. The preceding sections shall not, however, apply Burial ground 
to any cemetery or burial ground, but the same shall belong to not affected - 
the town within which it may be situated after a division shall 
have been made. 

Sec. 10. Debts owing by a town so subdivided or altered, Debts, how 
shall be apportioned in the same manner as the personal pro- a PP° rtloned - 
perry of the town, and each town shall thereafter be charged 
wjth its share of such debts according to such apportionment. 

Sec. 11. When the several towns cannot agree in relation when towns 
to a division or apportionment of the real or personal property, county board' 
or debts, or any part thereof, as provided in the six preceding Mid- 
sections, the dispute shall be submitted to the county board of 



of ; also for the purpose of apportioning between said towns, the 

money, rights, credits and other personal property lately belonging 
to, and the debts owing by said town of , the following proceed- 
ings were had. The real estate of said original town of was 

ordered to be disposed of and proceeds apportioned according to 

written agreement between said supervisors and assessors, dated . 

Said town was found to be possessed of money to the amount of 

dollars, which was apportioned as follows [state how apportioned]. 
Said town was found to be entitled to money arising from [state the 

source from which the money is to be derived] to the amount of 

dollars, which was apportioned as follows, [state how apportioned, and 
continue in like manner setting forth all rights, credits and personal pro- 
perty of the town, and debts owing, and how apportioned between the towns.] 

A. B., Supervisor of the 

town of 

C. D., Assessor of the 

town of 

E. F., Supervisor of the 

town of 

G. H., Assessor of the 

town of 

(1) Form of Notice by Supervisor to other Officers to meet and Apportion 

Property in case of Division or Alteration of Town. 
To , supervisor [or assessor] of the town of , county of — 

You are hereby notified that a meeting of the supervisors and 

assessors of the towns of and , will be held at [state the place 

where], on Monday, the day of , A. D. 18 — , at the hour of ten 

o'clock in the forenoon, for the purpose of making agreement con- 
cerning the disposition of the real estate lately belonging to said 

town of , and apportioning the proceeds thereof according to the 

law in such cases, in consequence of a division of the original town 

of , and the erection therefrom of the town of ; also for the 

purpose of apportioning between said towns the money, rights, credits 

and other^ personal property, lately belonging to said town of , 

at which time and place you are respectfully requested to attend. 

Dated at , this day of , A. D. 18 — . 

J. W. H., 
Supervisor of the town of . 



42 TOWNSHIP ORGANIZATION ACT. [dIY. I. 

the county, whose decision in the matter shall be conclusive 
between the parti es.(l) 

county board Sec. 12. The county board of each county shall have full 

towns" 1 " 6 power and jurisdiction to unite two contiguous towns into one ; 
but no such towns shall be united except in the following 

One-fourth of manner, that is to say : Whenever one-fourth of the voters in 

' each of the towns sought to be united shall petition the county 

board to unite such towns, said county board shall cause to be 

Election. submitted to the voters of said towns, at a general annual elec- 

tion to be holden in each of such towns, the question of unit- 
ing. Notice of such election shall be given by causing written 

Section* or P ri:Q ted notices thereof to be posted in five public places in 
each of said towns, at least twenty days before such election, 
and by publishing the same in at least one newspaper (if any 
there be published), in each of said towns, or in a newspaper 

Form of ballots Published in said county. The ballots cast at such elections 
to be written or printed, or be partly written and partly 
printed, "For uniting," or "Against uniting," — to be can- 
vassed in like manner as votes for county officers, and returned 
to the county board, who shall cause the votes to be canvassed ; 
and if a majority of voters of each town voting at such election 

(1) The submission of tlie question of division or apportionment of the prop- 
erty under the above section, in case of dissagreement, should properly be in writing 
stating the facts, signed by the supervisors and assessors, or verified by some person 
having authority in the premises. The following may be the form of such submis- 
sion : 

Form of Submission of Question of Division of Property to County Board 
in case of Disagreement between Towns. 

To the honorable the county board of the county of , State of 

Illinois : 

The undersigned, the supervisor and assessor of the town of , 

and the supervisor and assessor of the town of , of the county- 
aforesaid, respectfully represent to your honorable board, that the 

town of , which formerly comprised the territory now composing 

the aforesaid towns of and , has lately "been divided by 

proper authority, into two towns, named and styled as aforesaid, [or 

as the case may be), and whereas said town of was at such division 

thereof seized of the following real estate [or as the case may be~\, 
to wit: [here describe the premises], and that said towns cannot agree 
in relation to a division of said real estate [or as the case may be] ; the 
matter is therefore submitted to your honorable board for your deci- 
sion, pursuant to the statute in such case made and provided. 

Dated this day of , A. D. 18—. 

A. B., Supervisor of the 

town of . 

C. D., Assessor of the 

town o f . 

E. F., Supervisor of the 

town of . 

G. H., Assessor of the 

town of . 



ART. IV.] CORPORATE POWERS OF TOWNS, ETC. 43 

shall vote for uniting such towns, such county board at the 
meeting at which such vote is canvassed, or at the next suc- 
ceeding meeting, shall proceed to declare such towns united, 
and give the united towns a name, and define the boundaries provigo 
thereof: Provided, that the officers of each of such towns shall officers 'con- 
continue to hold their respective offices, and discharge the tmue in office - 
duties thereof, during the remainder of the term for which they 
were respectively elected : And, provided, that the commis- commissioners 
sioners of highways for each of said towns in office at the time of highways. 
of such union shall continue in and discharge the duties of 
their respective offices during the remainder of the term for 
which they were elected, and in the discharge of their duties 
shall act in conjunction : And provided further, that the union p^vtsa 
of such towns shall not be complete until the expiration of the 
terms of all officers in said town who are elected to serve for 
the period of one year.(l) 

ARTICLE IV. 

CORPORATE POWERS OP TOWNS, AND THE EXERCISE THEREOF 

— WHAT MAY BE DONE AT TOWN MEETINGS BY-LAWS, 

RULES AND REGULATIONS. 

Section 1. The corporate name of each town shall be : corporate 
" The town of (name of town)," and all acts done by the town, 
and all actions by or against the town shall be in its corporate 
name. (2) 

Sec. 2. Every town shall have corporate capacity to exer- Powers 
cise the powers granted thereto, or necessarily implied, and 
no others.(S) It shall have power — 

(1) Form of Petition for Uniting Two Towns into One. 

To the. honorable the county board of the county of , State of 

Illinois : 

The undersigned, being one-fourth of the voters of the town of 

in said county of , do petition your honorable board to unite said 

town to the town of , in said county, into one town ; said two 

towns being contiguous towns. 
And your petitioners wili ever pray. 

(2) Concerning legal proceedings in favor of and against towns, see Article 5, 
post, p 56- 

Where a cause of action exists in behalf of a town, and no officer is by statute 
authorized to prosecute for such cause of action, it is proper for the electors when 
convened at town meeting to direct such action to be brought, for which purpose 
they may appoint an agent to institute and prosecute the same, but such suit must 
be brought in the name of the town. Cornell v. Guilford, 1 Den. R., 510. 

(3) Towns may he considered as quasi corporations, with limited powers 
co- extensive with the duties imposed on them by statute or usage, but restricted 
from a general use of the authority which belongs to corporations by common law. 
Rvmford v. Wood, 13 Mass. R.. 193; Drake ct al. v. Phillips et al., 40 111 R, 388. 

These organized towns or townships are not municipal corporations in the sense 



44 TOWNSHIP ORGANIZATION ACT. [dIV. I. 

To acquire and lm T ° SUQ &nd be SUed 'W 

sell property? 2. To acquire by purchase, gift or devise, and hold property, 

■which the term is ordinarily used in our statutes. They are regarded as quasi cor- 
porations. See Norton v. Peer;. 3 Wis. R., 714. And as such have power to impose 
taxes for speciiic purposes. Urate et al. v. Phillips et at, 40 111. R., 36S. 

The Constitution of Illinois recognizes counties, cities, towns and townships 
as municipalities: Art. on Muu. Sub. to R. R. And it recognizes counties, cities, 
townships and school districts as municipal corporations. Const.. Art. 9, §12. As 
contemplated by the Constitution, a township is a territorial subdivision of a county 
for purposes of local government. Const, Art. 10. j? 5. Town and village are regarded 
as synonymous, and meaning the same thing. A town or village is a small collec- 
tion of houses in compact form, which may or may not be incorporated. If incor- 
Dorated, it usually possesses limited powers. A city is a large incorporated town, 
with more extensive powers in accordance with the demands of its population. Its 
affairs are controlled by a mayor and aldermen. 

In our statutes concerning* township organization, the word "town" is used as 
synonymous with toivnship. 

' The whole power and capacity of toivns, as corporations, is derived from and 
conferred by statute, and is specified and confined by certain functions only. Their 
authority to contract or assume liabilities is restricted to cases where such action is 
necessary for the exercise of their appropriate functions as corporations, and their 
power to sue and be sued must be limited to cases where the assertion of their cor- 
porate rights, or the enforcement of their corporate liabilities, requires such pro- 
ceeding. Tmn of Fishkill v. Fishkill & Beekman Plank Pond Co., 22 Barb. R., 634. 

Towns do not hold their 2>owers ordinarily under any grant from the gov- 
ernment to the individual corporation ; or by virtue of any contract with the govern- 
ment, or upon any condition, express or implied. They give no assent in their cor- 
porate capacity to the laws which impose their public "duties or fix their territorial 
limits. Perley, Ch. J., in Eastman v. Meredith, 26 N. H. Rep., 2S4, 200. And they 
derive none of their powers from, nor are any duties imposed upon them by the 
common laic. They have been denominated quasi, corporations, and their whole 
capacities, powers and duties are derived from legislative enactments. Shepley.CIi. J., 
in Hooper v. Emery, 14 Maine R. ;,2 Shep.;>, 375. 

It is held in Massachusetts that a town may indemnify its officers against a liability 
which they may incur in the bona fide discharge of their duties, although it turn out 
that they had exceeded their legai"rights and authority. Bancroft v. Lynfield, IS Pick. 
R„ 566. 

A town cannot make a valid subscription in aid of the construction of a railroad, 
unless exvressly authorized by law ; but such a subscription, if authorized by law, and 
made in"conformitv thereto, is valid and binding on the town. Bushnell v. Beloit. 10 
AYis. R.. 193 ; Town of Rochester v. Alfred Bk. et al., 13 id., 432 ; Berliner v. Town of Wat- 
ertown, 14 id., 37S ; Yccder v. lown of Lima, 19 id., 

See the foregoing ca^es as to the issuing of bonds and their validity in the hands of 
innccent holders and third parties. 

The new Constitution of Illinois declares that no township shall ever become 
subscriber to the capital stock of any railroad or private corporation, or make dona- 
tion to or loan its credit in aid of such corporation. Const, Art. on Mun. tub. to R. 
R. or Priv. Corp. Since which, towns have no authority to subscribe for or donate to 
the capital stock of railroad companies. The People ex rel, etc., v. Brooks, 56 111. R.. 142. 

As to origin and power of towns in Massachusetts, see note to case of Common- 
wealth v. Poxbury, 9 Gray (Mass.) R., 510, 511. 

A. municipal corporation must show authority in terms or by necessary impli- 
cation for all the powers it attempts to exercise, and especially so when it claims the 
right, by taxing or otherwise, to divest individuals of their property without their 
consent. Where a new power is given and the means of executing: it provided, those 
claiming the power can exercise it in no other manner. Mix v. Ross et al., 56 111. R.. 
121. 

It is the design of the law that municipal corporations shall exercise complete 
control over their local affairs. The legislature ordinarily has no power to impose 
a debt or levy a tax upon a municipal corporation without its assent, or to authorize 
persons not corporate officers to create a debt against the corporation, or to levy a tax 
therein, either directly or indirectly, without the consent of those to be affected 
therebv, or of the municipal authorities. Wilder ct al. v. City of East St. Louis, 55 111. 
R., 133.* 

(1) A township was steed on the following instrument : " The commissioners of 
highways of the township of R. will pay the bearer twenty dollars, wnen funds in 
road district number three and four," dated and signed by the commissioners. Held, 
that the action could not be sustained. The order was too indefinite in its terms. It 
should show expressly the person to whom pavable, and on what account. Monroe 
v. Township of Rowland, 11 Mich. R., 34S; Peoplex. Town Board of Zelwaukie,10 Mich. 
R., 274. " . 

A township is not liable for interest on damages appraised for laying out a high- 
way. People v. Township Board of La Grange, 2 Mich. R., 167. 

A town, in its corporate capacitv, cannot maintain an action to vindicate the tax 
pavers from an illegal tax. Guilford v. Supervisors Chenango Co., 3 Kern. R., 143. 



ART. IV.] CORPORATE POTTERS TOWN MEETINGS. 45 

both real and personal; for the use of its inhabitants, and again 
to sell and convey the same.(l) 

3. To make all such contracts as may be necessary in the Make contracts, 
exercise of the powers of the town. (2) 

Towns, under the township organization act, are not liable to a private 
action for damages occasioned by tlie neglect of the town authorities to keep their 
public highways in repair. The case of The Town of South Ottawa v. Foster, 20 111. R., 
ur as it holds the latter description of towns liable to such private actions, is 
overruled. In respect to that character of liability there is no difference between 
the authorities of counties and their powers and duties in regard to public highways, 
and towns established by law as civil divisions of counties merely, and the doctrine 
of the case of Hedges v. The County of Madison, 1 Gilm. R., 567, declaring that coun- 
ties are not liable to such private actions, applies to towns of that description. The 
rule is otherwise in case of municipal corporations created for their own benefit, 
where more extensive powers and privileges are granted, as cities and villaees. 
f Wattham v. Kemper, 55 111. R., 346 ; BushneH v. Toivn of Steuben, 57 111. R., 35. 
Nor can towns be subjected to such liability through an action against the commis- 
sioners of highways. Commissioners of Highways v. Martin, -4 ilicti. R., 557. 

(Y\ A town has no power to hold land not situated ' within its own limits. N. 
tad v. Hemostead, Hupk. Ch. R., 2S3, 2 Wend. R., 109 ; Biley v. City of Rochester, 
9N. Y. io Seld.) R", 64. 

JL sufficient and convenient room for elections and town meeting purposes 
is a public use for which the town may purchase and hold a site, and erect a build- 
in 2-. if there is none thereon, making all necessary contracts therefor. Such power 
includes the lesser power to lease a building for those purposes. Town of Beaver 
Dam v. Firings, 17 Wis. R.. 39S. 

A tmcn may gain title to lands by possession as well as "an individual. Booth 
v. Coventry, 1 Vt. R., 2£ 7. 

2 Towns, lilce other corporations, have no powers except such as are expressly 
or impliedly granted to them by the legislative power of the State. Baldwin v. North 
Branford, 32 Conn. R., 47: Booth v. Woodbury, id., U8; Webster x, Hancinton, id.. Vol. 

Where a contract is made in pursuance of a vote of a town, but before the contract 
Is performed the vote is rescinded, it seems that the person with whom the contract 
is made is not affected by the rescission, unless he had notice thereof, in which case 
it would be otherwise. " Allen v. Taunton, 19 Pick. R.. 4S5. So a vote of a town 
authorizing payment for certain work done, if not acted upon by the party in whose 
favor the vote is taken, mav be rescinded at the same or a subsequent meeting. 
GctckeUx. Weils, 55 Maine IL, 43a 

A town, as such, has no authority to contract with a plank road company, or other 
corporation, granting them the use of a highway in the town ; as a corporation a 
town has nothing to do with, and no interest in the highwavs within its limits ; the 
title to the soil is in individuals ; the right to their use belongs to the inhabitants of 
the town, not exclusively, but in common with the whole public. The care and 
superintendence of highways has been committed to certain officers of the town 
chosen for that purpose, and whose duties are prescribed bv law. See Town of Fish- 
kill v. Fishkill ti- Beekman Plank Road Co., 22 Barb. R., 631. 

The enumerated powers of towns includes that of erecting a suitable build- 
ing or town house, so called, for holding town meetings ; for the convenience of town 
officers, and for transacting all town business. The erection of such a building, selec- 
tion of a site, as \s ell as purchase of the land therefor, is under the control and direc- 
tion of the electors at town meeting. They may accomplish this by a vote of the 
electors, or by the appointment of a committee with power to act. " A veiy proper 
course would be to entrust the matter to the board of town auditors. See 'Town of 
Beaver Dun v. Rings, 17 Wis. R., 39S ; Kempt on v. Stetson, 13 Mass. R.. 271. 

The necessity of building a town hall and the amount of expense for that 
purpose is a question which is left to the judgment of the people of the town, and 
the officers whom they may elect. Courts will not interfere in this regard unless 
proper cause is shown. Greeley et al. v. The People, 60 111. R., 19. 

Powers of towns to erect town halls and buildings for rental discussed — see While 
V. Stamford, 37 Conn. R.. 57S. 

In respect to the binding effect of contracts illegally made bv the officers 
of municipal corporations, as organized townships, the rule i's different from that in 
regard to private corporations organized for pecuniary gain. If such corporations, to 
increase their profits, embark in enterprises not authorized by their charter, still, as 
to third persons, and when necessary for the advancement of justice, the stockhold- 
ers will be presumed to have assented, since it is in their power to restrain their offi- 
cerswhen they transgress the limits of their chartered authoritv. But municipal 
corporations are not organized for gain, but for the purposes of'erovernment, and 
debts illegally contracted by their officers cannot be made bindins: upon the tax- 
payers from the presumed assent of the latter. Bradley v. Ballard, 55 111. R.. 413. 

Town officers are not deemed personally liable on contracts made in behalf 
Of the town merely because they transcend their authority as such, if the other con- 



46 



TOWNSHIP ORGANIZATION ACT. 



[DIV. I. 



WHAT MAY BE DONE AT TOWN MEETINGS. 



Power of 

electors. 

Make orders 

concerning 

property. 



Exercise 
corporate 
powers. 

Raise money. 



Roads and 
bridges. 



Suits. 



Sec. 3. The electors present at the annual town meetings 
shall have power — (1) 

1. To make all orders for the sale, conveyance, regulation 
or nse of its corporate property that may be deemed conducive 
to the interests of its inhabitants. 

2. To take all necessary measures and give directions for 
the exercise of their corporate powers. 

3. To direct the raising of money by taxation for the fol- 
lowing purposes :(2) 

First. For constructing or repairing roads, bridges or cause- 
ways within the town, to the extent allowed by law. 3 

Second. For the prosecution or defense of suits by or against 
the town, or in which it is interested. (4) 



tractinsr partv knows at the time that the contract is in excess of their authoritv. Lett 
v. Shedd, 42 Vt. R.. 277. 

A town comm iftee having charge of the repair of roads -were held not personally 
liable for inadvertently pointing out to a road contractor an erroneous location of his 
section. Xickerson v. Dyer, 105 Mass. R.. 320. 

Held in Vermont, that where a town, through one of its selectmen, makes a 
contract and avails itself of the benefits thereof, it will not be allowed to repudiate 
any of its stipulations after the performance of the agreement by the other party by 
showing that the remainder of the selectmen were not cognizant of its terms.— Earle 
v. WaUmgford, 44 Vt. R.. S67. 

Towns are not bound, even by express vote of a majority of electors, to the 
performance of contracts or other legal duties not coming within the scope of the 
objects and purposes for which they exist. Parson.? v. Goshen, 11 Pick. EL, 396: Stet- 
son v. Kempton, 13 Mass. R.. 272 ; Xorton v. Mans field, 16 Mass. R., 48. 

(1) The poicers of the electors to bind the town are conferred by statute, and 
are limited to such acts as are prescribed bylaw. Cornell v. Guilford, 1 "Denio R.. 510. 

It is held in Massachusetts that a town may indemnify its officers against a liability 
which they may incur in the bona fide discharge of their duties, although it turn out 
that they "have" exceeded their legal risrhts and authority. Bancroft v. Lyn field, IS 
Pick. R., 566. 

The electors at tou-n meetings cannot direct an officer of the town to perform 
any act which by law he has not authority to perform, nor to act in any other man- 
ner, in the performance of his dutv, than that which is pointed out bv law. Keen v. 
Stetson. 5 Pick. R., 492. 

An act of the legislature legalizing a rote of a town renders such vote valid, 
although not confirmed by the town. Potter v. Canaan, 37 Conn. R,, 222 ; Stuan v. 
Warren. 37 Conn. R., 225. 

A. liberal and favorable co?istruction should prevail to support the proceed- 
ings of towns, especially when no one is thereby injured or deprived of any right. 
Kel'Air v. Savage, 5 Shep."R., 444. 

(2) It is not necessary that towns in their votes raising money for the annual 
expenditures authorized by law should in all cases state a specific sum for each par- 
ticular object. A vote to raise a certain sum for the expenditures of the current 
year is a legal vote. Tucker v. Aiken, -7 N. H. R., 113. 

(3) Concerning tax for roads and bridges, see also Div. 2. Sec. SI. post, p. I " . 
(4^ A town may vote a tax to defend a suit in which they are interested. 

whether directly for or against the town, or between third persons. 'Bnogsx. Whip- 
ple, 6 Vt. R., 95. 

If a toAvn officer, in attempting to enforce an ordinance of the town, wrongfully 
causes the imprisonment of the party charged with violating the ordinance, the 
town is not liable for such unauthorized act of the officer. President and Trustees of 
Odell v. Schroeder et ax., 58 111. R..353. 

Held, in New Hampshire, that a town cannot properly vote to pay money to its 
selectmen— who are a board of officers having charge of town affairs— for costs and 
damages sustained by them in resisting criminal prosecutions brought against them 
for refusing to insert names upon a check list provided by the statute, and money 
thus voted cannot be collected. Merrill v. Plainfe'd. 45 N. Hamp. EL, 126. And when 
selectmen have applied the money of the town to pay their expenses in de:Y 
against a criminal prosecution brought against them ibr alleged official miscc m 



ART. IV.] CORPORATE POWERS TOWN MEETINGS. 47 

Tli'tr J. For any other purpose required by law.(l) Lawful 

Fourth. For the purpose of building or repairing bridges or Brid in 
causeways in any other town in the same county, or in another other towns, 
county : Provided, that notice is given by posting notices de- Proviso, 
scribing the location of the bridge or causeway, and the proba- 
ble amount required therefor, in at least three public places, at 
least ten days before the meeting in the town in which the 
taxes are proposed to be levied: And provided, also, that the£ rovi i 30 - . 

tit -ii-ni • i -i i • • i o Tax ' t0 whom 

tax, when collected, snail be paid only on the joint order or paid, 
the commissioners of highways of the town in which the bridge 
or causeway to be built or repaired is situated, and those of 
the town in which the tax is collected. (2) 

in making up the check list, a subsequent vote of the town to ratify this application 
of the money will not be valid against a voter and tax payer of the town who has 
not assented to it. Gates v. Hancock, 45 N. H. R., 528. 

(1) The term " purposes required by law," must doubtless be understood as includ- 
ing also those cases where an obligation on the town is necessarily implied; but in 
exercising this power the electors will be held to legitimate purposes, where the town 
is immediatelv interested, or directly benefited. See People v. Works, 7 Wend., 486; 
Drake et al. v. Phillips et al., 40 111. R., 389. 

Held, in Massachusetts, that a town may appropriate money to indemnify a board 
of town officers for expenses incurred in defending an action for an alleged libel, 
contained in a report made by them in good faith, in the line of their duty, and in 
which judgment has been rendered in their favor. Fuller v. Groton, 11 Gray (Mass.) 
R., 310. 

JL town cannot levy a tax to refund money voluntarily paid by individuals. 
Drake et al v. Phillips et al.. 40 111. R., 389. Nor can a town raise money to refund 
money giveu to the town without expectation of repayment. Perkins v. Miljord, 59 
Maine R., 315. 

A. town cannot legally raise money for the apprehension and conviction of 
persons charged with crime. Gale v. Inhabitants of South Berwick, 51 Maine R.. 174. 
Nor can a town appropriate money for the celebration of the Fourth of July. Hood 
v. Lynn, 1 Allen R., 103; Aeu> London v. Brainard. 22 Conn. R., 552. 

Towns have no authority to raise money for building a theatre or any other 
place of mere amusement; nor for the purpose of raising a statue or monument, un- 
less in populous and wealthy towns they should be thought suitable ornaments to 
public buildings and the like. Stetson v. Kemplon, 13 Mass. R., 272. 

The electors at town meeting cannot vote a tax for improving lands or build- 
ings not owned by the town ; as to improve a town-house hired at the public ex- 
pense. People v. Works, 7 Wend. R, 486. 

(2) Where the law requires that notice shall he given of any special matter to 
be brought before a town meeting, in order to authorize action thereon, a vote taken 
upon such matter, without notice being given, is a nullity. Brackett v. Whidden, 3 
N. H. R.. 17. But this rule does not apply to those current subjects which come 
before the annual town meeting as a matter of course pursuant to the general 
statutes. 

Where notice of any special subject to be brought before a town meeting is required 
to be inserted in the notice of the meeting, the phraseology employed by the clerk 
will be liberally construed for the purposes intended. Bull v. Warren, 36 Conn. R., 83. 

In giving notice for levy of a tax for bridge purposes in another town, no 
definite mode of proceeding being provided, it would seem proper to adopt the rule 
prescribed in other similar cases. A request may be made to the town clerk by any 
elector of the town to have the subject brought before the next annual town meet- 
ing ; in which case the clerk mav include the subject, as requested, in the notice of 
the town meeting, as in case of change of place of holding the town meeting. See 
Article 6, Sec. 5, post, p. 59. The law does not prevent the town clerk from giving 
the notice even without a request; and when request is made, it may or may not be 
in writing. 

The following may he the form of the words to be inserted in the notice of the 
annual town meeting : 

Notice is, also, hereby given that at said town meeting the follow- 
ing subject will be considered, to wit : The raising of money by tax- 
ation, for the purpose of building [or as the case may be] a bridge in 
the town of , across a stream known as [name of stream], at the 



48 T0WX3HIP ORGANIZATION ACT. [dIY. I. 

Smts - 4. To provide for the institution, defense or disposition of 

suits at law or in equity, in all controversies between the town 
and any other town, or any individual or corporation, in which 
the town is interested, i 

Canada thistles. 5 # ^0 p reven t the introduction, growing or dissemination of 
Canada thistles or noxious weeds, and to allow rewards for 
their destruction, and to raise money therefor. (2) 

Planting trees. Q t ^ ff er premiums, and to take such action as shall in- 
duce the planting and cultivating of trees along the highways 
in such towns, and to protect and preserve trees standing along 
or on highways. 

S2cel ate 7- To make rules and regulations for ascertaining the suf- 

ficiency of all fences in such town, and to determine what shall 

place where the highway crosses said stream, leading from 



to . The probable amount required therefor i» dollars. 

TTie act concerning roads and bridges provides that the treasurer of the com- 
missioners of highways shall receive and have charge of all moneys rat-ted in the 
town for the support and maintenance of roads and bridges. See Sec. 15, pout. p. 113. 
In -"-iew of this it T .vould seem that the money collected for tax levied for bridge and 
causeway purposes in another town should be paid over to the treasurer of the com- 
missioner of highways of the town wherein the tax is levied, as in other eu . 

The joint order of the conunissioners of highways may be in the following 
form: 

Form of Joint Order of Commissioners of Highways. 

Count v, 1 



Town of ./ 

To the treasurer of the commissioners of highways of said town : 

Pay to , or order, the sum of dollars on account of 

funds in your hands from tax levied and collected for bridge and 
causeway purposes in the town of . 

Dated'this day of , A.D. 18—. 

A. B., ") Corn's of highwavs 
CD., [ of 

E. F., J town of . 

G. H., ) Corn's of highways 

I. J., \ of 

L. M., J town of . 

(1) I*rosecutio7i and defense of suits. It is held in New Hampshire that towns 
have a qualified interest in the roadways and bridges they have erected, and may 
maintain an action on the case for the destruction or obstruction of the road, or the 
conversion of the material. Town of Troy v. Cheshire R. R. Co., 3 Foster E„ S3. 

Held in Massachusetts that it is competent for the inhabitants of a town to take 
upon themselves the expense of a suit against their agent or servant in which the 
interests of the town axe directly involved. Where the servants of the town have 
made mistakes, which have rendered them liable at law. that it is legal and proper 
for the town to meet the expense. Babbitt et at. v. Savoy. 3 Cush. EL, 530. 

No action lies against a town for an injury to horses occasioned by the suffering of 
a public highway to become out of repair, and in a ruinous and unsafe condition ; 
and the electors at. town meeting have no authority, and cannot, by a majority vote, 
bind the town by agreeing to pay to the owner his damages he has sustained by 
such injuries. The town could not be made liable, it seems, without some express 
statute to that effect. In most of the New Eneland States such a statute exis:- 
Morty v. Xevjane. 8 Barb. R., 645 ; also 17 Johns. R,, 452 ; liushnd! v. 5 euben, 

57 111. R., 3-5. 

Where a town having authority to vote a lax for one year, votes it for three or more 
years, the tax voted will be valid for one year. People v. Alien, 43 111. R., 461. 

(2) On the subject of Canada thistles, see, also, Div. I., post, p. 91. 



ART. IV.] CORPORATE POWERS — TOWN MEETINGS. 49 

be a lawful fence within the town, except as otherwise provided 
by law.(l) 

8. To restrain, regulate, or prohibit the running at large of J^jjjjjj 
cattle, horses, mules, asses, swine, sheep or goats, and to deter- 
mine the time and manner in which such animals may go at 
large, unless the same are restrained from running at large in 
some manner provided by law. (2) 

9. To establish and maintain pounds at such places within Establish 
the town as may be deemed necessary and convenient, and dis- poun 

(1) Concerning fences, see, also, Div.IV.,title " Fences," post, p. 177. 

(2) Concerning animals running at large, see, also, Div.IX., title "Animals 
running at large," post, p. 372. 

The rule of c, mmon law, which requires the owner of cattle, horses and other 
animals to keep them on his own land, was formerly not in force in Illinois. Seeley 
v. Peters, 5 Gilm. R., 130; Misner v. LighthaU, 13 111. R., 609. But by the law above 
referred to, the rule of the common law has been changed in this regard, and such 
animals are not now allowed to run at large, except where permitted by a vote of 
the people, in pursuance of the law. It will be seen, by reference to the law above 
referred to, pos<,p.372,that where counties vote to allow domestic animals to run at 
large, the towns of the county may, nevertheless, by vote, restrain such animals from 
running at large in the town so voting. 

A. vote of a town to restrain cattle or other animals from going at large 
within the limits of the town, is binding upon persons not inhabitants, whose ani- 
mals are found going at large. Gilmvre v. Holt, 4 Pick. R., 258 ; Ames et al. v. Carlton, 
41 111. R., 262. 

Any by-law of a town declaring that all hogs should be kept up, only extends to 
prevent hogs from going at large on the highway; and it seems that a town has no 
power to prevent the inhabitants from allowing their own hogs and other animals 
to go at large upon their own lands. IShepard v. Hees, 12 John. R., 433. 

But the owner of animals running at large would be liable to the damage they 
may do. 

Towns may maize by-laws or ordinances prohibiting cattle and other ani- 
mals from running at large. The owner of animals running at large, contrary to 
such by-laws or ordinances, will be liable for trespass if his cattle go upon the land 
of others. A justice of the peace has jurisdiction in an action of trespass for dam- 
ages in such cases. Thus, a suit was brought by A. against B. before a justice of the 
peace. The cause was taken to the Circuit Court by appeal, and tried upon the fol- 
lowing agreed state of facts; "The plaintiff is a resident of the town -of Nevada, 
and the defendant is a resident of the town of Sunbury, lying adjoining in the same 
county. The defendant's cattle were running at large in the town of Sunbury ; and, 
while so running at large, crossed the town line into the town of Nevada, and did 
damage to the plaintiff's crops to the amount of five dollars. The plaintiff's crop 
was protected by no fence further than required by the ordinance hereinafter set 
forth. The town of Nevada had adopted the following ordinance or by-laws: 

1. The outside edge of cultivated lands shall be a good and lawful close or fence 
for all purposes in law. 

2. No cattle, horses, mules, asses, hogs or sheep, shall be permitted to run at large 
in the town of Nevada, in the county of Livingston, and State of Illinois. 

The court found for the plaintiff, and the cause was taken to the Supreme Court, 
and judgment affirmed. The court say, Lawrence, Justice : 

The statute authorizes every town to prohibit the running at large of cattle, horses, 
etc. This town did so. Under the operation of this ordinance, cattle running at 
large were running in violation of law, and their entry upon the premises of a 
stranger was a trespass, as at common law. Justices have jurisdiction of the action 
of trespass to real estate, and would, therefore, have jurisdiction of an action 
brought to recover damages for injuries done by cattle illegally at large. The special 
remedy given by the ordinance is simply cumulative, and could not oust the justice 
of a general jurisdiction given him by the statute. The only question for him to 
decide was, whether the defendant's cattle had illegally gone 'on the land of the 
plaintiff. If a trespass, the owner was liable for any damages done, and these dam- 
ages could be recovered before any tribunal having jurisdiction of the parties and 
of the action of trespass. Judgment affirmed. Ames et al. v. Carlton, 41 111. R., 262. 

Where an act concerning animals running at large provided for taking up 
by a householder, and that the same should be delivered up to the owner on payment 
of fees and charges. Held, that a party seeking to justify such taking up must show 
that he is a householder (see Elinger v. Boneau, 51 111. R., 94), and that the owner, 
before he can maintain replevin, must show both a demand for the animals and an 
offer to pay the fees allowed for taking up, and charges for keeping the same, as 
prescribed by the act. Holcomb v. Davis, 56 111. R., 413. 



TOWNSHIP ORGANIZATION ACT. 



[div. I. 



continue any pounds therein. When any pound is erected, it 
shall be under the care and direction of a pound master. (1) 
Pound masters. 10. To determine the number of jpound masters, to prescribe 
their duties, and to elect pound masters, either by ballot or in 
such other manner as they may determine or provide for their 
appointment. 

11. To authorize the distraining, impounding and sale of 
cattle, horses, mules, asses, swine, sheep, or goats for penalties 
incurred and costs of the proceeding : Provided, that the sale 
of animals distrained or impounded shall be conducted, as near 
as may be, according to the law regulating sales of property 
by constables under execution : And provided, also, the owner 
of such animals shall have the right to redeem the same from 
the purchaser thereof at any time within three months from 
the date of the sale, by paying the amount of the purchaser's 
bid, with reasonable costs for their keeping, and interest upon 
the amount bid at the rate of ten per cent, per annum. (2) 



Impound 
animals. 

Proviso. 
Sale. 



Proviso. 
Redemption. 



(1) Location of pounds. It seems to be the policy of the law that pounds shall 
have a fixed and known locality. This is necessary, that all parties interested may 
take notice of where to apply in case of animals impounded. If no public pound 
has been erected by the town, it would be proper to designate any particular enclo- 
sure named, as a pound for the time being. In case neither course is adopted, it 
would no donbt be proper for the town by its by-laws to authorize a person to im- 
pound animals in his private enclosure, by giving immediate personal notice to the 
owner. Anthony v. Anthony, 6 AJlen (Mass.) P., 418. 

Trespass will lie where a pound master allows impounded cattle to be driven 
away for pasture, or where there is unreasonable delay in complying with the law or 
regulations of the town. Cote v. Cate, 44 New Hamp. R., 211 ; Hamman v. Fifleld, 36 
Vt. R., 341. 

(2) A. person distraining cattle running at large, contrary to the regula- 
tions of the town, must drive them to the pound in a reasonable time, considering 
the circumstances. As to what is a reasonable time is a fact to be determined in the 
trial. Mere delay in instituting proceedings in the case, does not make him a wrong- 
doer from the beginning. Drew v. Spaulding, 45 New Hamp. R., 472. 

A person at his father's, on a visit, impounded cattle found upon his father's farm, 
with the approbation of his father, who sent a boy to help him : held, that the son's 
act in impounding the cattle was, in legal effect, the act of his father. 

An impounder of cattle has a right to use the same force to maintain his possession 
of them that a sheriff has to protect his possession of property taken by him on legal 
process. A person who takes possession of cattle for the purpose of impounding 
them, does not, by afterwards abandoning his design, become a trespasser ab initio, 
as to become liable for force, which he used in defense of such possession before 
giving it up. Barrows v. Fassett, 36 Vt. R., 625, 

Trover lies for an animal wrongly impounded; and under the general issue 
the defendant may show that the animal was unlawfully at large. Drew v. iypaidd- 
tng, 45 New Hamp*. R., 472. 

When a statute provided for the impounding of animals found "wandering, stray- 
ing or lying" about the road : it was held, that horses grazing on the side of a turn- 
pike, under the control of a man in charge of them, were not liable to be impounded 
under this provision. Morris v. Jeffries, Law Pep., 12 B., 291. 

Where an ordinance of a town prohibiting certain animals from running at 
large provided that anv person, being the owner of or having the care of any such 
animal, who should suffer the same to run at large, should be subject to a penalty 
specified ; in an action to recover the penalty for an alleged violation of the ordin- 
ance, the proof disclosed these facts: that the defendant lived on his farm outside 
of the limits of the town : that he had allowed the animals to run in a piece of woods 
near by, but that he watched and cared for them daily, and would have prevented 
them from straving into the town, on this the first instance, had he not been called 
away to the bedside of a dying brother. Held that this evidence clearly exonerated 
the defendant from the chame of suffering his animals to run at large within the 

lis ordinance, he 
j, which requires 
large within the 



ART. IV.] CORPORATE POWERS — TOWN MEETINGS. SI 

12. To construct and keep in repair public wells or other Public weiis. 
watering places, and regulate the use thereof. 

town, or have been guilty of such negligent conduct in enablin 
vvouki have been equivalent thereto. Town of Collinsvillex. Scanh 



them to do so as 
Scanland, 58 111. R., 221. 

An orrfhutncc of a town for distraining stock from running at large, pro- 
vided, anions? other things, that if the owner failed to reclaim them within a certain 
time, " and pay all costs of impounding and the damages which the stock may have 
done— the damages to be assessed by three disinterested men, citizens of the town," 
they should be sold to satisfy such costs and damages. Held, that the ordinance was 
unconstitutional and void : that the proceeding being one for damages, the owner 
was entitled to a trial by jurv, the same as in any other case at law, and could not be 
deprived of such right. Bullock v. Geomble. 45 111. R., 218 ; Willis v. Segris, id., 289. 

The law which gives to towns the power to restrain or prohibit the running at large 
of certain animals, and authorizes the distraining, impounding and sale of the same 
for penalties incurred, and the costs of the proceedings, does not give to towns th< 
power to confer upon anv of its officers authority to make sales for impounding 
animals, except upon the contingency that penalties have been incurred. A pro- 
ceeding to ascertain whether a penalty has been incurred, is one purely judicial in 
its diameter, and involves a power which cannot be exercised by the pound master 
by virtue of his office ; nor can a town, by its by-laws, authorize him to sell prop 
erty to satisfy a forfeiture for the violation of a law or ordinance, without a judicial 
ascertainment that there has been such violation. And a sale - of property by the 
pound master, without a judicial ascertainment being first had, w T ill not divest the 
owner of his title. Poppen v. Holmes, 44 111. R. : 360 ; Willis v. Segris, 45 111. R., 293: 
Cate v. Cede, 44 New Hamp. R., 211. 

In the case of Poppen v. Holmes, 44 111. R., 360, the court say, Lawrence, J. : 

It will be observed that the power to make sales is given only for penalties incurred 
and the costs of the proceedings, and a town cannot by its by-laws confer such 
authority upon its officers in any other contingency. But to ascertain whether a 
penaltv has been incurred or not, is a proceeding purely judicial in its character, and 
that power cannot be exercised by the pound master by virtue of his office. The 
by-law may impose a reasonable penalty for the offense of allowing animals to run 
at large, mav authorize the animals to be impounded, and may direct an inquiry to 
be had before a magistrate as to whether the penalty has been incurred, with a right 
of trial by jury. If it has been incurred, the magistrate may be directed to enter 
judgment against the owner for the penalty and costs, and an order directing the 
pound master to sell the property. If the owner is known, he should receive per- 
sonal notice, and if not known, there may be constructive notice to him, as the un- 
known owner of the impounded property, by posting, the property being described 
in the notices. A by law thus framed would be free from objection ; but one which 
authorizes the pound master to sell property without a judicial ascertainment that 
some law has been violated, would confer upon the pound master a species of power 
never contemplated by the statute above quoted, to say nothing of constitutional 
objections to its exercise. See, also, Willis v. Segris, 45 111. R., 289. 

In the absence of any express provision of law prescribing the mode of proceed- 
ing to establish the fact that a penalty has been incurred, the court, in the foregoing 
case, held that such mode of proceeding may be provided by the town by-laws, and 
the court points out particularly the provisions that may be made. The following 
form of by-laws, and mode of proceeding concerning domestic animals running at 
large, are given as being in accordance with the suggestions of the court in the fore- 
going case : 

Form of By-Lav:s concerning Cattle and other Animals Running at Large. 

The town of — , in the county of , in the State of Illinois, 

by the electors thereof, duly assembled, do adopt the following by- 
laws : 

Section 1. No cattle, horses, mules, asses, swine, sheep or goats, 

shall hereafter be permitted to run at large in the town of , 

and it shall be unlawful for any animals of the species aforesaid to 
run at large in said town. 

Sec 2. Any person owning any animals of the species aforesaid, 
who shall suffer or allow the same to run at large in said town, shall 

incur and be liable to a penalty of dollars for each and every 

day he shall suffer or allow any of his said animals to so run at large. 

Sec. 3. Whenever any animals named in the first section hereof 
are hereafter found running at large, it shall be the duty of the pound 
master to cause them to be taken and placed in the public pound. 
And it shall be lawful for any person to take such animals to the 
pound, and cause them to be impounded. 

Sec. 4. Whenever any such animals are placed in the pound, it 



52 TOWNSHIP ORGANIZATION ACT. [dIV. I. 

Night soil 13. To prevent the deposit of night soil or other offensive 

substances within the limits of the town. 

shall be the duty of the pound master to make complaint at once to 
some justice of the peace of the town, and apply for proceedings to 
adjudge against the owner the penalty incurred, stating the name of 
the owner, if known to him, and the number and kind of animals. 
If the owner is not known, then giving a description of the animals. 

Sec. 5. The justice shall thereupon issue a notice in writing to the 
owner of said animals, stating the facts of impounding, and fixing 
therein a time not exceeding days thereafter, when said com- 
plaint will be heard, which notice shall be served at least days 

before the time of hearing the complaint. In case the owner is not 
known, then the notice shall describe the animals, and be posted by 

the pound master in five public places of the town, for days 

before the time fixed for such hearing. 

Sec. 6. It shall be the duty of the pound master to attend before 
the justice at the time fixed for the hearing as aforesaid, and present 
the facts in the case. The cause shall be tried by a jury, unless 
waived by the owner, and shall be conducted as other causes of like 
nature are conducted before justices of the peace. If the owner is 
found guilty, the justice shall enter judgment against him for the 
penalty as herein prescribed, and costs, and shall enter an order 
directing the pound master to sell the property to make the fine and 
costs. 

Sec. 7. "Whenever animals are impounded, it shall be the duty of 
the pound master to supply them with proper food and drink during 
the time they remain. The value thereof, with services for feeding, 
to be shown on trial, shall be allowed as costs against the owner. 

TTnder the foregoing form of by-laws the act of allowing any number of ani- 
mals to run at large for one day constitutes one offense. Each day will be a separate 
offense ; for which separate actions should be brought in prosecuting for penalties. 

The complaint to the justice, under the foregoing form of by-laws, need not be 
in writing. Such proceeding is not required to be in writing, unless when so ex- 
pressly provided, 

Form of Notice by Justice to Owner of Animals Impounded. 

To A. B. : 

You are hereby notified that C. D., the pound master of the town 

of , has this day complained to me that on this day of 

, 18 — , three cows, of which you are the owner, were found by 

him running at large in said town, at [state the place where'] , contrary 
to the by-laws of the town, as he alleges, whereby you have incurred 
the penalty prescribed. That he did thereupon cause said cows to 
be impounded in the public pound of the town [if there are more than 
one pound, state which the animals are in], where they now remain, and 
that said complaint will be heard before me at my office in said town, 
on the — — day of , 18 — , at — o'clock — M. 

Witness my hand this day of , 18—. 

E. F., 
Justice of the Peace. 

TJie notice may be served by the pound master or any constable ; but in case 
the defendant does not appear, proof of the service should "be made before the jus- 
tice by the person serving the notice, as in case of any other fact. 
Form of Notice by Justice, where Owner of Impounded Animals is not known. 
To whom it may concern : > 

The unknown owners of the animals, hereinafter described, are 

hereby notified that C. D., the pound master of the town of , 

has this day complained to me that on day of , 18—, three 



ART. IV.] CORPORATE . POWERS — TOWN MEETINGS. 5 

14. To make all such by-laws, rules and regulations as may Make by-iawi 
be deemed necessary to carry into effect the powers herein 

cows, one a brindle, and two of a deep red color, each about six years old, 
of which the owner is unknown, were found by him running at large 
in said town, at [state the place where'], contrary to the by-laws of the 
town, as he alleges, whereby the owner has incurred the penalty 
prescribed. That he did thereupon cause said animals to be im- 
pounded in the public pound of said town [if there are several pounds, 
state which the animals are in], where they now remain, and that said 
complaint will be heard before me at my office in said town, on the 

day of , 18—, at — o'clock, — M. 

Witness my hand this day of , 18 — . 

E. F., 
Justice of the Peace. 

Form of Docket Entry, on hearing Complaint against Owner of Impounded 

Animals. 

^Coun^of"— } Before E. F., Justice of the Peace. 

The Town of ") 

vs. [ Complaint of C. D., pound master. 

A. B. J 

18 — , July 2, C. D., pound master, complains of A. B. for allowing 
three certain cows, of which said A. B. is the owner, to run at large, 

contrary to the by-laws of said town of , which animals he did 

this day cause to be impounded. Notice is issued to said A. B. that 
said complaint will be heard July 5, 18 — , at — o'clock, — M. Notice 
returned served on said A. B. at date, by pound master. 

July 5, — o'clock, — M., pound master appears, and makes proof of 
due service of notice on defendant ; said A. B. also appears; jury of 
twelve men summoned, and sworn to try the matter in issue. The 
allegations of the parties, and proofs, are heard. The jury find that 
the complaint herein is true, and assess a fine against said A. B. of 

dollars. Judgment is therefore rendered against said A. B. 

for said sum of dollars for said fine, and the costs herein taxed, 

at dollars and cents. And it is ordered that the pound 

master proceed and sell said animals impounded as aforesaid, to make 
the amount of said fine and costs, in accordance with the statute in 
such cases made and provided, unless the same shall be paid before 
the sale. 

E. F., 
Justice of the Peace. 

Pound master's sale. The law regulating sales of property by constables under 
execution, provides that the constable " shall appoint a day and hour for the sale of 
said property, giving ten days' previous notice of such sale, by advertisement in 
writing to be posted up at three of the most public places in the county ; and on the 
day so appointed, the said constable shall sell the property so levied on, or sO much 
thereof as may be necessary to pay the debt, interest and costs, to the highest bidder." 
Justices' Act, i872. See Sec. 88, Haines' Treatise, new edition, p. 744. The property 
should be sold by the pound master, in the town, at some convenient public place to 
be set forth in the notice of sale. The following may be the form of the notice of sale : 

Form of Pound Master's Notice of Sale. 

POUND MASTER'S SALE. 

Notice is hereby given that the undersigned, pound master for the 

town of , in the county of , and State of Illinois, by 

virtue of authority in him vested, will on the day of , A.D. 

18 — , at the hour of — o'clock M., at [state place], in said town, offer 
for sale and sell to the highest bidder the following described ani- 



54 TOWNSHIP ORGANIZATION ACT. [DIY. I. 

impose fine, granted, and to impose such fines as shall be deemed proper, 
Proviso, S50. except when a fine or penalty is already allowed by law : Pro- 
vided, no fine or penalty shall exceed fifty dollars for one 
offense. (1) 

mals, to wit: [describe the animals particularly}, said animals having 

been duly distrained and impounded for a fine of dollars, 

incurred in consequence of the same running at large in said town, 
contrary to the by-laws thereof. Said animals will be sold as afore- 
said, in satisfaction of said fine and costs of proceedings. 

Dated this day of , A.D. 18—. 

J. S., 

Pound Master. 

TJie pound master, in taking up animals and proceeding to sell them, must 
pursue the law and regulations of the town strictly, or the proceedings will be 
invalid, and the purchaser, at his sale, will acquire no title to the propertv. Rex v. 
Crook, 1 Cowper R., 26; Clark v. Lewis. 35 111. R., 420. 

Under an ordinance of a town prohibiting the running at large of certain animals, 
except at certain seasons of the year, and authorizing the impounding of the same, 
and their sale after giving notice, the pound master has no authority to act unless 
the animals are running at large, and at a time prohibited by the ordinance, and he 
will become a trespasser if he acts without authority. If he is sued for the property, 
he must prove that the animals were in that situation which the ordinance desig- 
nated. The mere fact that he is an oflicer of the law is not sufficient ; he must show 
that he acted lawfully. Nor can the purchaser, at a pound master's sale, establish 
his title against the former owner by mere proof of the sale: he must establish its 
validity by showing the authority, which can not be presumed. 

Where the ordinance requires 'that not less than ten days' notice shall be given 
before a sale of an impounded animal shall be made, this is an essential pre-requisite 
of such a sale, and can not be dispensed with by the officer. An abridgment of the 
time for the shortest period must avoid the sale. Nor can the sale be sustained 
■where the pound master sells two animals, belonging to different owners, together 
at the same bidding. They should be sold separately. Clark v. Lewis, 35 111. R, 4i8. 

(D A by-law is a rule obligatory on a body of persons, or over a particular dis- 
trict, not being at variance with the general laws of the State, and being reasonable 
and adapted to the purposes of the corporation ; and any rule or ordinance of a per- 
manent character which a corporation is empowered to make, either by the common 
or statute law. is a by-law. It is a rule made prospectively and to be applied when- 
ever the circumstances arise for which it is intended to provide. A by-law cannot 
impose an oath, unless empowered to do so, for that is contrary to the common law. 
By-laws are binding upon all the inhabitants of the town ; and every stranger, 
though merely coming within the limits of the town, is bound, at his peril, to take 
4 notice of all its by-iaws, provided it is said the object of the by-laws be to suppress 

a general inconvenience or defeat fraud. Grant on Corporations. 76. 77. 
: Where a by-law or ordinance of a town simply declares what shall constitute a 
misdemeanor, without prescribing any penalty therefor, no recovery can be had for 
violation of such by-law or ordinance. Bowman et at. v. SI. John. 43 111. R.. 337. 

In an action to recover a penalty for violating a by-law or ordinance of a town, it 
must appear affirmatively that the act complained of occurred after the by-law or 
ordinance took effect. It would be error to render judgment for the penalty without 
such proof. Debt is the proper form of action in such case. In bringing such action 
before a justice of the peace, which may be done where the amount does not exceed 
one hundred dollars, an affidavit or complaint in writing on which to base it is 
unnecessary. The action can be commenced in the same manner as an ordinary 
action oi debt before a justice of the peace. The summons may be in the usual 
form for civil cases. A bond for costs, as in penal actions under the statute, is not 
necessarv. Town of Jacksonville v. Black et ai., 36 111. R., 507: lawn of Lewistown v. 
Proctor, 23 111. R, 533. 

Ordinances of a municipal corporation are binding upon all the inhabitants 
therein, and have all the force and effect of laws. Jones v. Fireman's Ins. Co., 2 Daly 
(N. Y.) R.. 307. 

An ordinance which appears by tlie records to have been passed, may be pre- 
sumed to have been passed by the full number of votes required, although the 
record does not affirmativelv show that fact. Lexingtonx. Headly. 5 Bush. (Ky. > R., 508. 

In a proceeding to recover a penalty for violating an ordinance of a municipal 
corporation, proof is necessarv of the existence of the ordinance. Stevens v. Chicago, 
48 111. R., 498. To warrant a conviction for violation of an ordinance there must be 
proof that the act was committed within the limits of the town. See Taylor v. Ameri- 
C8*s, 39Ga.R.,59. 

A person upon whom a fine is imposed for violation of a town ordinance can- 



ART. IV.] CORPORATE POWERS CONVEYANCES. 55 

15. To apply all penalties, when collected, in such manner ponies 
as may be deemed most to the interests of the town. 

Sec. 4. In towns in which there are incorporated cities or incorporated 
villages, the boundaries of which are co-extensive with thcvii£|S! d 
limits of the town, or the town lies wholly within the limits of 
an incorporated city or village, the electors shall not exercise 
the several powers contained in subdivisions of section three 
of this article, namely: 3, 5, 6, 7, 8, 9, 10, 11, 12 and 13; 
but all moneys necessary to be raised in such towns for town Certain 
expenses shall be ascertained by the county board, and the provisions not 
county clerk shall extend the amount so ascertained upon the 
collector's books of such town, and when collected the same 
shall be paid over to the town supervisors the same as in other 
towns, and the powers and provisions of all cities and villages 
under their organic law shall not be repealed by any of the 
provisions of this article. 

NOTICE OF BY-LAWS, ETC., TAKING EFFECT. 

Sec. 5. It shall be the duty of the town clerk to cause all To ^n clerk to 

. J . . publish by-laws 

by-laws, rules and regulations ot the town, withm twenty 

days after their adoption, to be published by posting in three 

public places in the town ; also by causing the same to be 

inserted once in a newspaper published in the town, if any 

there shall be ; but all such by-laws, rules and regulations By-laws, when 

shall take effect and be in force from the date of being In 

adopted, unless otherwise directed by the electors of the town. 

EFFECT OF CERTAIN CONVEYANCES. 

Sec. 6. Every conveyance or lease of land made to any Con veyancefor 

J . J p,i it n. n J benefit of town. 

person or persons in any manner, tor the use and benefit of a 
town or its inhabitants, shall have the same effect as if made 
to the town by its corporate name. 

HOW CONVEYANCES MADE. 

Sec. 7. When any conveyance of real estate is made by a Conveyance, 
town, tho deed shall recite the order of town meeting directing 
the same (which recital shall be prima facie evidence of the ^dence ** 
making and contents of such order), and the deed shall be 
signed by the supervisor, in his official capacity, and attested 

not be committed to prison, or held by the officer, upon the mere verbal order of the 
magistrate. President and Trustees of Odell v. Schrocder et ux., 58 111. R., 3f>3. 
It is erroneous to issue execution on a j udgment against a municipal corporation. Id . 



56 



TOWNSHIP ORGANIZATION ACT. 



[div. 



I. 



by the clerk of the town, unless the meeting shall have ordered 
that the same be made by some other officers or persons. (1) 

ARTICLE V. 
LEGAL PROCEEDINGS IN PAYOR OF AND AGAINST TOWNS. 



Actions, how 
conducted. 



Effect of 
judgment 

Service of 
process. 



Suit in name 
of town. 



- Section 1. Whenever any controversy or cause of action 
shall exist between any towns of this State, or between any 
town and an individual or corporation, such proceedings may 
be had either at law or equity for the purpose of trying and 
finally settling such controversy, and may be conducted in the 
same manner, and the judgment or decree therein shall have 
the like effect as in other suits or proceedings of a similar 
kind between individuals and corporations. All process shall 
be served by leaving a copy of the writ or summons with the 
supervisor. 

Sec 2. In all such suits and proceedings, the town shall 
sue and be sued by its name, except where town officers shall 



(1) Form of Deed of Conveyance by Town. 

This indenture, made this day of , A JD. 18 — , between the 

town of , in the county of and State of Illinois, party of the 

first part, and C. D., of , party of the second part, wilnesseth: 

That, whereas, at the annual town meeting of said town of , 

duly held on the day of , A.D. 18 — , at , in said town, 

an order was made by said town meeting in the words following, to 
wit: 

Ordered that [set forth the words of the order. ,] [The deed should also 
recite a compliance with the conditions of the order.] 

Now, therefore, the said party of the first part, in consideration 

of said sum of dollars duly paid, the receipt whereof is hereby 

acknowledged, has remised, released, sold, conveyed and confirmed, 
and by these presents does remise, release, sell, convey and confirm 

unto the said party of the second part, heirs and assigns for- 

ever, all the right, title, interest, claim and demand which the said 
party of the first part has in and to the following described lot, piece 

or parcel of land, situate in the county of , and State of Illinois: 

[describe the premises] to have and to hold the same, together with all 
and singular the appurtenances and privileges thereunto belonging, 
or in anywise thereunto appertaining, and all the estate, right, title, 
interest and claim whatever, of the said party of the first part, either 
in law or equity, to the only proper use, benefit and behoof of the 
said party of the second part, heirs and assigns forever. 

In witness whereof, A. B., supervisor of said town of , has 

hereunto set his hand in behalf of said town, and affixed a scroll 
hereto in the place of a seal, and this indenture is attested by the 
town clerk, the day and year first above written. 

A. B., [seal.] 

Attest : E. F., Supervisor of the town of . 

Town Clerk. 



ART. VI.] TOWN MEETINGS. 57 

be authorized by law to sue in their name of office for the ben- 
efit of the town.(l) 

Sec. 3. On the trial of every action in which the town is a witnesses and 
party or interested, the electors and inhabitants of such town 
shall be competent witnesses and jurors, except that in suits 
and proceedings by one town against another, no inhabitant 
of either town shall be a juror. 

Sec. 4. Any action in favor of a town, which, if brought suits before 
by an individual, could be prosecuted before a justice of the :,usaces ' 
peace, may be prosecuted by the town in like manner before 
any such justice. 

Sec. 5. Whenever, by any decree or decision in any suit or t^towxTiand? 
proceeding brought to settle any controversy in relation to 
town commons or other lands, the common property of a town, 
or for the partition thereof, the right of any town shall be 
settled and confirmed, the court in which such proceedings 
shall be had may partition such lands according to the rights 
of the parties. 

Sec. 6. In all suits or proceeding's prosecuted by or against Costs > ho 7 

J- o i »/ o recovered. 

town officers, in their name of office, costs shall be recovered 
as in like cases between individuals. Judgments recovered 
against a town or against town officers, in actions prosecuted Judgments a 
by or against them, in their name of office, shall be a town town charge, 
charge, and when collected shall be paid to the person or per- 
sons to whom the same shall have been adjudged. 

ARTICLE VI. 

TOWN MEETING — JUDGES OF ELECTION. 

Section 1. The annuai town meeting in the respective Tim e of annual 
towns, for the election of town officers and the transaction of ° 

(1) Toirti officers, in. bringing suits, should do so in their name of office, with- 
out the addition of their individual name. Should town officers, such as commis- 
sioners of highways, sue in their individual names as such town officers, and their 
term of office should expire pending the proceeding, the suit would abate, as these 
persons would no longer act in an official character, and hence could not further 
maintain the suit in that capacity. And it may be a serious question whether the 
suit could be revived in the names of their successors; and if it could, then the 
same difficulty would present itself in case their predecessors had acted willfully or 
maliciously, in rendering judgment, so as to hold them liable, as the successors 
could not be made personally responsible for the malice or neglect of their prede- 
cessors. A judgment against a person not then holding a town office would not 
bind the town. If against the successor of him who committed the wrong he could 
urge that he did not omit the duty. Highway Comrs. of Rutland v. Highway Comrs. 
of Dayton. 60 111. E., 58. 

An agent of the town, to prosecute and defend suits only, has no authority to 
settle them; and for any promise made by him in compromise he is personally 
liable if the party act on the faith thereof. Clay v. Wright, 44 Vt. R, 538. 

The admissibility of confessions of an agent to charge his principal, applies to the 
officers and agents of a town. Burlington v. Calais, 1 Vt. R., 471. 

Held, in Maine, that a town may bring an action in its own name on 'a contract 
made for its benefit with an authorized agent. Garland v. Reynolds, 2 App. R., 45. 



58 



TOWNSHIP ORGANIZATION ACT. 



[DIV. I. 



meeting. 



the business of the town, shall he held on the first Tuesday 
of April in each year, at the place appointed for such meet- 
ings. (1) 
Notice of town Sec. 2. Notice of the time and place of holding town meet- 
ings shall be given by the town clerk, or, in his absence, the 
supervisor, assessor, or collector, by posting written or printed 
notices in three of the most public places in the town, at least 
ten days prior to the meeting, and if there is a newspaper 
published in the town, by at least one publication therein, 
prior to the meeting. (2) 

Sec. 3. Each town shall, for the purposes of town meet- 
ings, constitute an election precinct. 



Election 
precinct. 



(1) Tlie Constitution declares that "1be day of holding the annual township 
meeting shall be uniform throughout the State." Const., Art. 10. Sec. 5. 



(2) Form of Notice for Annual Town Meeting. 



in the county 



ANNUAL TOWN MEETING. 

The legal voters and electors of the town of — 

of , and State of Illinois, are hereby notified that the annual 

town meeting for said town will be held at [state the place where], in 

said town, on Tuesday, the day of April next, being the first 

Tuesday in said month, for the purposes following : 

1. To choose a moderator to preside at said meeting. 

2. To elect one supervisor, one town clerk, one assessor, one 
collector, one commissioner of highways, two constables, two justices 
of the peace, so many overseers of highways as there are road dis- 
tricts in said town, and so many pound masters as the electors may 
determine. 

3. To [add any further specific subjects upon which the meeting may be 
required to act that may be thought proper, and conclude by adding] and 
to act upon an}' additional subject which may, in pursuance of law, 
come before said meeting, at the proper time, when convened. 

Which meeting will be called to order between the hours of eight 
and nine o'clock in the forenoon. 

Given under my hand at , this day of , A.D. 18 — 

J7M.T., Town Clerk. 

TJie foregoing form of notice is in accordance with that in use in the States of 
New England, corresponding to the requirements of their statutes. It contains 
more than the law requires, but this full specification of subjects, although not 
strictly required, is not objectionable. It affords a better understanding beforehand, 
and calls the attention of those concerned more immediately to the law, by which 
they are better prepared to act when the appointed time arrives. It is also advisable 
to state the time, as fixed by law. for convening or calling the meeting to order. 

The following is a shorter form, which is suggested as being a substantial com- 
pliance with the law in giving notice of the annual town meeting, which may_be 
used when desired : 

Another form of Notice for Annual Town Meeting. 

ANNUAL TOWN MEETING. 

The legal voters and electors of the town of , in the county 

of , and State of Illinois, are hereby notified that the annual 

town meeting for said town will be held at [state the place where] on 

the day of April, A.D. 18 — , being the first Tuesday in said 

month, for the purpose, among other things, of electing the follow- 
ing officers [here enumerate the town officers to be chosen], and for the 
transaction of all such other business as may, in pursuance of law, 
come before such meeting wiien convened ; which meeting will be 



Aili . Vi.j TOWN MEETINGS. §9 

Sec. 4. The place of holding elections shall be some conve- PJacc of town 
nient place in the town, to be fixed by the electors, at their 
annual town meetings. 

Sec. 5. Whenever it is desired to change the place of hold- ciSmgSfg place 
ing town meetings, and any twenty-five electors shall, before j£' ^vm 
the time of giving notice of an annual town meeting, file with 
the town clerk a request in writing that a change be made, 
designating the place to which the change is desired, a notice 
of such request shall be included in the notices of such meet- 
ing, and the electors may vote for or against such proposition. 
The ballots for the proposed change shall read: " For Form of ballots 

for ciiSLHsrinsT- 

changing the place of holding town meetings to (name of 
place proposed);" those against shall read: "Against 
changing the place of holding town meetings ; " and if a 
majority of all the votes cast for and against such change shall 
be in favor of changing to the place designated, the place 
shall be so changed. (1) 

called to order between the hours of eight and nine o'clock in the fore- 
noon, and he kept open until six o'clock in the afternoon. 

Given under my hand at - — , this dav of March, A.D. 18 — . 

F. D. B., Town Clerk. 

All that the law requires is that notice of the lime and place of the town 
meeting shall be given. The notice need not be addressed to any one. Baldwin v. 
North Bradford, 32 Conn. R., 47. 

The law requiring"notice of the annual town meeting to be given is directory. 
The law fixes the time, and the place is fixed by the electors, of which every one is 
bound to take notice ; therefore a failure to give the notice, as directed by the law, 
will not invalidate the meeting. 6 Hill E., 646 ; 3 Denio R., 52b. See Angell & Ames 
on Corp., Sec. 488. People v. Ptck, 11 Wend. R., 691. 

At the first town meeting in new towns, three commissioners of highways are 
to be elected, whose term of office is to be decided by lot. See Art. 1, Sec. 16, ante, p. 22. 

In giving public notice, in the computation of time, the rule is, when an act is 
to be performed within a particular period, or on a particular day, from and after a 
certain day, to exclude the day named and include the day on which the act is to be 
done ; or more concisely stated, it is to count one day in and the other out. Thus, 
in giving ten days' notice of an election or event to take place on the 10th of the 
month, the notice must be given or posted on the last day of the preceding month, 
in order to give ten days' notice. Ewing v. Bailey, 2 Scam. R., 420 ; Hall v. Jones, 28 
111. R., 55 ; Harper el al. v. Ely el al., 56 111. R., 179. 

(1) Form of Request by Twenty-five Electors for change of Place of Holding 
Town Meetings. 

To the Town Clerk of the town of : 

The undersigned, twenty-five electors of said town of , do 

request that a change be made in the place of holding the town 
meetings of said town to [set forth the place to which the change is 
desired]. 

Dated this day of , 18 — . 

[To be signed by 25 electors of the town.] 

Form of Notice of Request to be Included in the Notice of Town Meeting. 
To vote on the question of changing the place of holding town 
meetings to [set forth the place to which the change is desired, as in the 
request], a request for that purpose, by twenty-five electors, having 
been duly filed with the town clerk. 



60 



TOWNSHIP ORGANIZATION ACT. 



[div. I. 



Judges of 
election. 



Sec. 6. The supervisor, assessor and collector of the town 



shall be, ex officio, judges of all elections 
as other[wise] provided by law. 



in their town, except 



SPECIAL TOWN MEETINGS. 



Special town 
meetings. 



Notice. 



Sec 7. Special town meetings shall be held, when the 
supervisor, town clerk and a justice of the peace, or any two 
of said officers, together with at least fifteen voters of the 
town, shall file in the office of the town clerk a statement, in 
writing, that a special meeting is necessary for the interests of 
the town, and setting forth the objects of the meeting. (1) 

Sec. 8. Notice of such special town meeting shall be given 
in the same manner and for the same length of time as other 
town meetings. (2) 

(1) Form of Statement to be filed in the office of Town Clerk for Special 
Town Meeting. 
The undersigned, town officers and fifteen voters of the town of 

, in the comity of , do state that a special town meeting 

is necessary for the interest of said town for the purpose of [here set 
forth the object of the meeting]. 

"We would therefore request that immediate notice be given thereof, 

and that such meeting be held on the day of , A.D. IS — . 

Witness our hands this day of , A.D. IS — . 

L. B., Supervisor. 
S. W. M., Town Clerk. 
C. S., Justice of the Peace. 
[Names of fifteen voters'] of the Town. 

It is not necessary that the statement for a special town meeting should be 
addressed to any person. The statute does not require it. Baldwin v. Xortli Bran- 
ford, 32 Conn. R., 47. 

In the statement for a, special town meeting it is only necessary to set forth 
the objects with such reasonable certainty as will notify ah interested of the objects 
for which the meeting is called, and the time and place of meeting. Alger v. Carry, 
40 Vt. R., 437. 

(2) Form of Notice for Holding Special Town Meeting, 

SPECIAL TOWN MEETING. 

Whereas, the supervisor, town clerk and a justice of the peace [or 

as the case may be], together with fifteen voters of the town of : , 

have, in writing, filed in my office a statement that a _ special town 
meeting is necessary for the interest of said town, setting forth the 
object of the meeting. 

The legal voters and electors of the said town of ■ are there- 
fore hereby notified that a special town meeting will be held at , 

on the day of , A.D. 18 — , to commence between the 

hours of 8 and 9 o'clock in the forenoon, for the purposes following, 
to wit : 

To [here enumerate specifically, in proper order, the subjects to be acted 
upon as contained in the statement filed]. 

Being the objects contained in the said statement filed in my office. 

Given under my hand at , this ■ day of , A.D. 18 — . 

S. W. M., Town Clerk. 

The town clerh, in giving notice of a special town meeting, performs a mere 



ART. VII.] MODE OF CONDUCTING ELECTIONS. C)l 

Sec. 9. The notice shall set forth the object of the meet- Notice to state 
ing, as contained in the statement filed with the town clerk, meeting, 
and no business shall be done at a special meeting except such 
as is embraced in such statement and notice. 

Sec. 10. The electors at special town meetings, when con- ^JT to r r g f 
vencd, shall have power : 

. 1. To fill vacancies in the offices of town officers, when the Fil1 vacancies, 
same shall not have already been filled by appointment. 

2. To provide for raising money for repairing highways, or Raise money, 
building or repairing bridges, in cases of emergency, and to 

direct the building and repairing thereof. 

3. To act upon any subiect within the powers of the clec-'Apton subjects 

* , J J t • i • i i of annual town 

tors at any annual town meeting which may nave been post- meeting, 
pone J, for want of time, at the preceding annual town meet- 
ing, to be considered at a future town meeting. 

ARTICLE VII. 

TOWN OFFICERS ELECTED BY BALLOT — MODE OF CONDUCTING 
ELECTIONS FOR TOWN OFFICERS. 

Section 1. At the annual town meeting in each town there Election of 
shall be elected by ballot one supervisor (who shall be, ex officio, 
overseer of the -poor), one town clerk, one assessor, and one col- 

ministerial duty, and the electors cannot be limited in their action at the meeting 
by the phraseology of the notice, provided the statement of the objects for which 
the meeting is called is substantially correct. Ball v. Wan-en, 36 Conn. R., 83. 

To voider a special town meeting legal, it should appear that a statement, as 
required by law, that the meeting was necessary, was filed in the office of the town 
clerk. The record of a special town meeting, reciting the filing of the proper state- 
ment, would be sufficient prima facie to show such fact. Brown v. Witham, 51 Maine 
R., 29; Lemington v Blodgrt; 37 111. R., 210. 

It is held in New York that special town meetings have no jurisdiction to act upon 
any subject not specially conferred upon such meetings bylaw. That the powers 
conferred upon the electors at the aunual town meeting can not be extended by 
implication to special town meetings. People v. Works, 7 Wend. R., 486. By the 
statute of New York, special town meetings have power, specially given, to supply 
vacancies in certain cases: to raise moneys for the support of common schools, or 
the poor, when those subjects were not acted upon at the annual town meeting; and 
to deliberate in regard to suits for or against the town, and to raise moneys therefor. 
And it is decided that they have no other power. See same case before cited. This 
decision will apply with equal force to the statute of Illinois. It will be observed, 
however, that special town meetings have authority to act upon any subject within 
the power of the electors at the annual town meeting where the subject was post- 
poned for the consideration of a special meeting. When it is desired to postpone 
the consideration of any subject to a subsequent special town meeting, the proposi- 
tion should be reduced to writing in the form of a resolution or order, and being 
adopted by the meeting, should be recorded by the clerk upon the minutes of the 
proceedings of the meeting, that in case of controversy it may be shown with 
certainty what subjects were postponed or laid over. The policy of postponing 
subjects for the action of special town meeting's should never be adopted unless it 
•becomes absolutely necessary from want of time for action at the annual meeting, 
or like cause; sucha policy must always more or lessendanger the rights of individ- 
uals, and tend to confusion and dissatisfaction. 

A town meeting specially^ called to vote a tax for a given purpose is not 
au*horized to act upon any subject beyond a vote upon such tax. Atwood v. Lincoln, 
44 Vt, 332. 

Special town meetings may be lield to vote on the question of borrowing money 
to build bridges. See DiV. II., " Roads and Bridges," Sec 71, post, p. 159. 



62 



TOWNSHIP ORGANIZATION ACT. 



DF 



Term of office. 



Proviso. 

Towns aDd 
cities of large 
proportion. 



lector, who shall severally hold their offices for one year, and 
until their successors are elected and qualified ; and such jus- 
tices of the peace, constables and highway commissioners as 
are provided by law : Provided, that in any town, or any city 
not included within the limits of any town (except in Cook 
county), having four thousand inhabitants, there shall be 
elected one additional supervisor, to be styled assistant super- 
visor ; in towns having six thousand five hundred inhabitants, 
there shall be elected two assistant supervisors, and so, for 
every additional twenty-five hundred inhabitants, there shall be 
elected one additional supervisor ; the population of towns to 
'be ascertained by the last federal or State census preceding the 
Proviso. election : Provided, that nothing in this act shall be so con- 

Former ratio strued as to diminish the representation that any city or town 
retained. ma y now ^ Q entitled to by law. But in case such city or town 

is now entitled to a greater representation than is given by 
this section, it shall be entitled to no additional representation 
under this section ; and the members of the board of super- 
visors from such city or town now provided for by law, shall 
continue to be elected as now required by law : And provided 
further, that wherever the representation of any city or town 
is or shall become less than is given by this section, no increased 
representation under any special acts shall be had by such city 
or town, but its representation shall be as providecrfor in this 
section.(l)* 



Further 
proviso. 



r (1) The number of commissioners of highways of a townis three. The term 
of ofiice is three years. At the first town meeting three commissioners are elected, 
and the term of office of each is agreed upon by lot, so that one expires every year, 
and therebv there is one commissioner to be elected at every annual town meeting. 
See ante, p. 22, Art. 1, Sec. 16. 

If a town fails or neglects to elect the number of justices' or constables r to 
which it would be entitled under the law, and should elect a less number, having 
had a full number for the preceding term, this would oust all those of the previous 
term; neither could hold over on the ground that no one had been elected in his 
place. People v. Jones, 17 Wend., 81. 

The question is frequently raised whether a person can hold more than one town 
office at the same time. In the absence of any express prohibition by the statute, 
one person could hold such offices at the same "time as are not incompatible with 
each other. At common Jaw the onlv offices incompatible with each other were 
such as were subordinate and interfering, as where one was judicial, and the other 
ministerial, and the latter was directlv subordinate to the former. Citing Bouv. Law 
Diet., 4 Sergt & Rawle. Opiti. Alt'y Gen'l Cole (Minn. . Vol. 1, p. 260. 

The acceptance of a second office, incompatible with the first, vacates the first 
office. People v. Cnrrique, 2 Hill R., 93. 

Although a majority of the electors of a town mav not attend and vote at a town 
meeting, yet persons receiving a majority of the votes of those that attend Jot offices, 
Will be legally elected. Opin. Att'y Gen'l Cole (Minn.), Vol. 1, p. 296. And although 
a town meeting may be invalid by reason of irregularity, vet the town ofiicers 
elected at such meeting are officers de facto, and as such their acts are binding on 
the town. Cashing v. Frankfort R " 

Tlie Constitution declares 
special laws in the following cases 
•" Regulating county and township affairs. 

" Providing for the election of members of the board of supervisors in townships, 
incorporated towns and cities." Const., Art. 3, Sec. 22. 

*See roads and bridges, post p. 113, Sec. 11a. 



57 Maine R., 541. 
(I 'Clares that the General Assembly shall not pass local or 



ABT. VII.] MODE OF CONDUCTING ELECTIONS, 68 



Sec. la. In counties adopting township organization, in each school Act 
and every township whose boundaries coincide and are idcnti- ' ' 
cal with those of the town, as established under the township 
organization laws, the trustee or trustees [of schools] shall be^wnsSp 0f 
elected at the same time and in the same manner as the town trustees - 
officers ; and all elections heretofore held at such time and in 
such manner in such townships are hereby legalized, and in all 
such townships, if no trustees are elected at the stated town 
meeting, and when vacancies occur in the board, an election of 
trustee or trustees shall be ordered by the trustees of schools, 
through the township treasurer, as provided in the twenty-fifth 
section of this act. 

Sec. 2. The electors present, at any time between the hours Time of calling 
of eight and nine o'clock in the forenoon of the day on which Sder. ng ° 
there is an annual or special town meeting, shall be called to 
order by the town clerk, if there be one. In case there be 
none, or he is not present, then the voters may elect, by accla- 
mation, one of theirnumber chairman. They snail then pro- chairman 
ceed to choose one of their number to preside as moderator of Moderator, 
such town meeting. (1) 

Sec. 3. The moderator so chosen shall have the same power power of 
and be subjected to the same penalties as other judges of e lec- moderator - 
tion. 

Sec. 4. Before the moderator of any town meeting shall Oath of 
enter upon the duties of his office he shall take an oath faith- inoderator * 

(1) TJie provision requiring the town meeting to be called to order between 
eight and nine o'clock in the forenoon, would seem to be directory. Should there 
be a failure to call the town meeting to order within the time specified by law, it 
could no doubt be properly called to order at any time during the day, where all 
parties act in good faith. See Qooddell v. Baker, 8 Cowen K, 286. 

In organizing a town meeting the town clerk, it seems, is to take the chair as 
temporary moderator, or chairman of the meeting for the time being, and conduct 
the proceeding of choosing the moderator for the meeting. In case the town clerk 
is absent, then some elector present is chosen to act in such temporary capacity. 

A. town meeting, when properly convened at the place appointed at the last 
annual town meeting, may no doubt, by a majority vote of the electors present, 
adjourn, if found necessary ior convenience, to another place, where the meeting 
may proceed with the business of the day. if the place adjourned to is at any con- 
siderable distance, so as to render it material, the vote for adjournment should not 
be taken before the hour of ten o'clock in the forenoon at least ; sufficient time ought 
to be afforded for a full expression of the electors, and in towns where meetings have 
not usually convened until a later hour, then such vote should not betaken until the 
arrival of the usual hour of meeting. Gould v. Baker, 8 Cowen, 286. But there seems 
to be no authority, express or implied, for adjourning the meeting to another day. 

WJiere a town meeting wa* called to ho. held at a school house, and the clerk, 
with four or five others, assembled in the street opposite the school house one-half 
hour after the "irae appointed, and without choosing a moderator adjourned to a 
store a mile distant, on the borders of the town, leaving no notice of such adjourn- 
ment at the school house, where not more than fourteen of two hundred and sixty 
voters attended, and oihers came to the school house, and finding no indications of 
a meeting, went home: it was held that the act of the meeting at the store was not 
binding on the town. That a town meeting called to be held in a building named, 
must be understood to mean within the walls of the building. That to be legal, the 
town meeting must be originally held at the time and place appointed. It was fur- 
ther held in this case that a town meeting legally organized has the incidental power 
of adjourning to a future time, and perhans to meet in a different place, provided it 
be appropriate. Chamberlain v. Dover, 1 Shep. (Maine) R., 466. 



64 



TOWNSHIP ORGANIZATION ACT. 



[dit. 



fully and impartially to discharge the duties of such office, 
which oath may be administered by. the town clerk, or other 
proper officer. (1) 

Sec. 5. The town clerk, last before elected, or appointed, 
shall be the clerk of the town meeting, and shall keep faithful 
minutes of its proceedings, in which he shall enter, at length, 
every order or direction, and all rules and regulations made by 
such meeting. 

Sec. 6. If the town clerk be absent, then such person as 
shall be chosen for that purpose by the electors present, shall 
act as clerk of the meeting. 

Size. 7. The town shall supply a suitable ballot-box or boxes, 
to be kept and used in like manner as ballot-boxes in other elec- 
tions. In incorporated towns, or in incorporated villages whose 
limits are co-extensive with the limits of a town, or in towns 
which lie wholly within the limits of an incorporated city, or 
in any organized town where the number of votes at the last 
preceding general election exceeded three hundred, the county 
board may require one or more additional ballot-boxes and 
places for the reception of votes to be provided, which places 
shall be selected with reference to the convenience of the elec- 
tors of the town, and shall designate at which of said polling 
places the town clerk shall act as clerk of the election, and 
such polling place, when so designated, shall be the place for 
transacting the miscellaneous business of the town : and when 
several places are so provided, the electors present shall choose 
from their number one assistant moderator, and one assistant 
clerk, for each additional ballot box, to receive the votes 
therein, who shall take the same oath and be subject to the 
same penalties as the moderator and clerk, and shall be under 
the direction of the moderator. At the closing of. the polls 



Town clerk is 
clerk of 
meeting. 



Clerk pro tern. 



Ballot boxes. 



Incorporated, 
towns and 
villages. 



Additional 
ballot boxes. 



Assistant 
moderator 
and clerk. 

Additional 
ballot-box. 



(1) Form of Oath of Moderator of Town Meeting. 

I do solemnly swear [or affirm, as the case may le.~\ that I will sup- 
port the Constitution of the Ui ited States, and the Constitution of 
the State of Illinois, and that I will faithfully and impartially dis- 
charge the duties of the office of moderator at this town meeting, 
according to the best of my ability. 

Tlif fnrcffohiff form of oath of moderator comprises the form prescribed by 
the Constitution fur official oaths in all cases, with the addition of the words "and 
impartially," as required by the above section. If the position of moderator is an 
office, these words are unnecessary. See Const.. Art. V. - : 

The clerk should make a record* upon the minutos of the meeting of the fact that 
the moderator was duly sworn before entering upon the duties of his office. 

Where, in pursuance of law. an oath of office is administered in open town meet- 
ins, in presence of the town clerk, the clerk's record of the fact is competent evi- 
dence of the administration of the oath. Bnggs v. Ifwxlock, 13 Pick. I?. 

The. n? (fleet of the moderator or cJeri; to take the oath as prescribed, would 

not. it seems, vitiate the election of officers at town meeting:. An oath irregularly 

administered, for example, upon a book other than the Holy Bible, the parties ad*- 

tering it, and taking it, supposing it a Bible, is a valid oath. People v. Cook, 4 

Seld. E., 07. 



election laws 
govern. 



ART. VII.] MODE OF CONDUCTING ELECTIONS. 65 

all the said ballot-boxes shall be brought together at the poll- Baiiot-boxe* 
ing place where the town clerk acts as clerk of the election, together and 
and the votes shall be canvassed at the same time and in the votescanva8Bed 

same manner, and return thereof made the same as if all the 
votes had been cast in the same ballot box. When more than Notice of each 
one voting place shall be required by the county board, it shall p 
be the duty of the town clerk to post up in three of the most 
public places in the town a notice of each of the places in the 
town where the county board have directed and required the 
election to be held : Provided, that in towns where there is no Proviso, 
town clerk, it shall be the duty of the county clerk to post 
notices of election. When there shall be more than one poll- 
ing place in a town, the general meeting for the transaction General 
of miscellaneous business shall be held at the time hereafter p3ace. Dg 
mentioned, at the polling place where the town clerk acts as 
clerk of the town election, and in towns where there is no 
town clerk, at such place as shall be designated bv the county 
clerk.(l)* 

Sec. 8. The general laws of the State in regard to elec- General 
tions and qualifications of voters shall apply to all elections to 
be held under this act, so far as the same may be applicable, 
except as herein otherwise provided: Provided, that no regis- Noregistrv . 
tration of voters shall be required. (2) 
. , _^ 

(1) The county board, in designating separate places for receiving votes at 
a town election, cannot meet and have a verbal understanding where the places 
shall be. In the case of a city council exercising like authority, it was held that the 
council should take such formal action before the election that citizens could know 
from its records where the election was to be held, and that this must be done a suf- 
ficient length of time in advance to enable the town clerk to give notice of the elec- 
tion. Tlie People v. Gochenour, 54 111. R., 123. 

(2) TJie general laws in regard to elections and the qualification of voters are 
to be observed, with limited exceptions, m conducting all elections under this act. 
This is required by the above section, and is to some extent a new principle in the 
township organization system in this State. As the law formerly existed, the election 
of town officers was a matter incident to a town meeting, and was under the control 
of the electors. But by the terms of this act the election of town officers is regarded 
as a separate proceeding, to be conducted in the manner of general elections. This 
act provides that the supervisor, assessor and collector of the town shall be judges 
of all elecW/na in their town, except as otherwise provided by law. See ante, p. 48, Art. 
VI., Sec. G. There is no provision of law regulating elections in this regard in towns, 
whether for town officers or otheiwise. except the general election law. It seems to 
be the intention of this act, as drawn from its various provisions, that the election of 
such town officers as is required by law to be by ballot shall be conducted under the 
charge of the regular judges of election of the town, in connection with the modera- 
tor of the town meeting; it being provided that the moderator shall have the same 
power as other judges of election. See ante, p. 51, Art. VII., Sec. 3. 

It is further provided by this act (ante, p. 21, Art. I, Sec. 12), that the county board 
shall appoint three electors of the town to be judges of election at the first town 
election (meaning the election at the first town meeting^ in said town. If, therefore, 
it is considered necessary to have judges of election at the first town meeting, these 
officers are equally as important at all subsequent town meetings at which elections 
are held. This being the intention of the law, the moderator and the three regular 
judges of election of the town will form a board of judges of election, and take 
charge of the ballot box, and conduct the election of town officers and canvass the 
ballots the same as at any other election under the general election law of the State. 
For duties of judges of election, qualification of voters, canvassing votes and 
manner of conducting the election of town officers, see the general election law, 
post, p. 304-311. 

*Amcnd( d, see post p. 95. 



66 



TOWNSHIP ORGANIZATION ACT. 



[DIV. I. 



Recess. 



Statement of 
result. 



Notice to 
persons elected 



Sec. 9. A recess may be taken during the time necessary 
for the transaction of the business of the town other than the 
election of officers by ballot. 

Sec. 10. The canvass being completed, a statement of the 
result shall be entered at length by the clerk of the meeting 
in the minutes of the proceedings, to be kept by him as before 
required, which shall be publicly read by him to the meeting ; 
and such reading shall be deemed notice of the result of the 
election to every person whose name shall be entered on the 
poll list as a voter. (1) 



Form of Poll List kept at Town Meeting. 
Poll list kept by the clerk at the election at the town meeting held 

at , in the town of , and county of , on the 

day of , A.D. 18 — , on which is entered the name of each per- 



son voting at said election. 



Number. ' Names of Voters. 


Number. 


Names of Voters. 


1 J. H. 

2 E.H 


3 

4 


J. W. 



Total number of ballots, 4. 

J. J., Moderator. 
A. B., I 

C. D., f Judges of Election. 
Attest : J. S., Town Clerk. E. F., J 

The mil lots cast at an election are better evidence than the tally list made from 
them of the number of votes. People v. Holden, 2S Cal. R., 123. 

The moderator, as inspector of electiou. is a ministerial officer, and his action can 
be reviewed by the courts. People v. Pease, 27 N. Y. R., (13 Smith) 45. 

When an election is authorized to he held in a town for a given purpose, as 
to determine the question of subscription to the stock of a railroad compam . but no 
mode is prescribed in which the election shall be condi:cted. the election should be 
held in the manner that township elections are required to be held for the election 
of town officers, and not under the general election law. The People ex rel., etc., v. 
Butcher, 56 111. R., 144. 

(1) The law seems to contemplate that a canvass of votes shall be made in like 
manner as prescribed by the general election Jaws of the State. See Div. VIII. Elec- 
tions, Sec. 61, post p. 310. The following may be the form of the canvass; 
Form of Canvass of Votes at Town Flection. 

At an election at the annual town meeting in the town of , 

held at , in said town in the county of , and State of Illi- 
nois, on the day of April, in the year of our Lord one thous- 
and eight hundred and , the following named persons received 

the number of votes annexed, to their respective names for the fol- 
lowing described offices, to wit : 

P. K. had one hundred votes for Supervisor. 
H. G. had seventy-fire votes for Supervisor. 
O. H. had one hundred votes for Town Clerk. 
[And in the same manner for any oth^r persons voted for. ~\ 
Certified by us. 

A.B.,1 

C. D., f Judges of Election. 
E.F.J 

L. M., Moderator. 
Attest : G. H., Town Clerk. 



ART. VII.] MODE OF CONDUCTING ELECTIONS. 07 

Sec. 11. In case two or more persons shall have an equal Tie vote. 
number of votes for the same office, the question of which 
shall be entitled to the office shall be decided between such 
persons by lot, under the direction of the town clerk, but he By lot, 
shall give each party notice of the time and place of drawing 
lots.(l) 

TJtc mn rrrss thus made should be delivered to the town clerk, and by him be 
kept on tile in his office. 

Form of Statement of Result of Canvass to be entered by the Clerk in 
Minutes of Meeting. 

The following is a statement of the result of the canvass of votes 
by ballot, for the election of officers at the town election at the 

annual town meeting in the town of , in the county of , 

State of Illinois, A.D. 18 — , as canvassed by the judges of election : 

A. Ix. had one hundred votes for Supervisor. 

H. G. had seventy-five votes for Supervisor. 

O. II. had one hundred votes for Town Cleric. 

[And so on, giving a statement of the votes cast for each person.'] 

WJiere the name of a voter appears on the poll list of persons voting at a 
township election, and the minutes of the meeting were publicly read to the meet- 
ing, and the name of a voter was read out to the meeting as having been elected 
overseer of highways : Held, that he had all the notice of his election to which the 
law entitles him. Too much strictness on such subjects as proceedings at town 
meetings would be fatal to the system of township organization ; hence the courts 
are inclined to be liberal in reviewing such proceedings. Yocum v. Town of 
WaynesviUe, 39 HI. R.. 220. 

■\\ here no certificate or other formal mode of making know r n to a person his elec- 
tion to a public office is required by law, the result of the election as ascertained 
and announced at the close thereof is conclusive upon the election of officers, and 
cannot afterwards be reconsidered or varied. State v. Warren, 1 Houston (Del.) It., 39. 

(1) Form of Notice by Town Clerk of Drawing Lots in case of a Tie Vote 

Between Candidates. 
To J. S. : 

Sir — You having received, at the late town meeting, an equal 
number of votes with D. K far the office of supervisor of the town 

of , are hereby notified that the question of which of you is 

entitled to said office will be decided by lot at my office in said town, 

on the day of , A.D. 18 — , at the hour of ten o'clock in 

the forenoon; that, should you fail to appear at such time and place, 
the matter will be decided in your absence. 

I)ated at , this day of , A.D. 18 — . 

J. B., Town Clerk. 

TTliere the candidates are present at the announcement of the tie vote at 

town meeting, verbal notice may be given them by the clerk, informally, and the 
drawing lots take place at once, or at some convenient time named. No method of 
proceeding is prescribed in deciding the question between candidates, but the draw- 
ing is under the direction of the town clerk ; he will therefore direct the manner in 
which to proceed. He may prepare two pieces of paper, on one may be written the 
title or name of the office in question, leaving the other blank; then fold each alike 
and place them in a box, from which let the candidates draw; the person drawing 
the paper containing the name of the office to be entitled to it and declared duly 
elected. In case the candidates, or either of them, fail to attend upon being noti- 
fied, then the clerk can select some qualified elector to draw for the absent candidate. 
It is proper that some record should he made by the town clerlz of the man- 
ner of disposing of the question of a tie vote between candidates, that the records of 
the town may always show who are elected officers. It would therefore be well for 
the clerk to add a memorandum at the close of the minutes of proceedings of the 
meeting, after the signatures of himself and the presiding officer, in the following 
form: 

Form of Memorandum of Decision of Tie Vote between Candidates. 
At the annual town meeting in the town of , in the year 



68 



TOWNSHIP ORGANIZATION ACT. 



[DIV. I, 



cicrk give Sec. 12. The clerk of every town meeting, within ten days 

person elected, thereafter, shall transmit to each person elected to any town 

office, whose name shall not have been entered on the poll list 

as a voter, a notice of his election. (1) 

Sec. 13. The town clerk shall file in the office of the county 

clerk a list of the names of all town officers elected at the 

annual town meeting, within twenty days after such election 

shall be held. 



Return to . 
county clerk 



ARTICLE VIII. 

THE MODE OE CONDUCTING TOWN MEETINGS FOR THE TRANS- 
ACTION OF MISCELLANEOUS BUSINESS.(2) 



Miscellaneous 
business. 



Town clerk is 
clerk of 
meeting 



Section 1. At the hour of two o'clock in the afternoon, on 
the day of an annual or special meeting, the polls shall be 
closed ; and the moderator shall call the meeting to order for 
the transaction of miscellaneous business. 

Sec. 2. The town clerk, if there be one, and he is present, 
shall act as clerk of the meeting, and shall keep faithful min- 



is — , A. B. and C. D. having had an equal number of votes for the 

office of , the question of which should be entitled to said 

office was, on the day of , 18 — . duly decided between 

them by lot, and it was decided that the said A. B. should be entitled 
to said office. 

E. F., Town Clerk. 

(1) Form of Notice by Town Clerk to a person Elected to a Town Office 
whose Name is not on tJie Poll List. 



-, in the county of : 



To G. N., Esq., of the town of - 

You are hereby notified that at the election at the annual town 

meeting \_or special, as the case may be~\ held in said town, at , on 

the day of , A.D. 18—, you were duly elected to the 



office of supervisor. 
Given under my hand at 



-, this day of , A.D. 18—. 

W. N., Town Clerk. 



(2) Mules for town meetings. Town meetings, provided by this act, are conven- 
tions or assemblies of the legal voters of the town, forming what is termed delibera- 
tive assemblies, for the transaction of certain business pertaining to their local 
interests — exercising certain powers, not delegated to their representatives, each 
elector appearing and acting for himself, and being accountable to no one for his 
acts as such. Meetings of this kind are conducted according to certain rules which 
experience has shown to be fit and necessary for that purpose. The rules necessary 
in conducting the ordinary business of a town meeting are few and simple, and are 
such as would occur to the good sense of every man of ordinary intelligence. In 
disposing of business properly and with dispatch, much depends upon the moder- 
ator or presiding officer: if he thoroughly understands his duties, and performs 
them properly and prompt! v, he will greatly facilitate the business of the meeting. 
The general duties of the presiding officer, as laid down in the books of parliamen- 
tary practice, are the following: 

To open the sitting, at the time to which the assembly is adjourned, by taking the 
chair and calling the members to order. 

To announce the business before the assembly in the order in which it is to be 
acted upon. . . 

To receive and submit, in the proper manner, all motions and propositions pre- 
sented by the members. 



ART. VIII.] MODE OF CONDUCTING TOWN MEETINGS. 69 

ut os of the proceedings in a book to be known as the town Town record. 
record, in which he shall enter, at length, every order or 

To put to vote all questions which are regularly moved, or necessarily arise in the 
course of the proceedings, and to announce the result. 

To restrain the members, when engaged in debate, within the rules of order. 

To enforce, on all occasions, the observance of order and decorum among mem- 
bers. 

To receive all messages and other communications, and announce them to the 



To inform the assembly, when necessary, or when referred to for the purpose, on 
points of order or practice. 

To name the members (when directed to do so in a particular case, or when it is 
made a part of his general duty by a rule,) who are to serve on committees; and, in 
general. 

To represent and stand for the assembly, declaring its will, and, in all things. 
obeying implicitly its commands. Gushing' s Manual. 

The moderator will find, upon examination, that the most important of his duties 
have been defined by this act. 

It is made the duty of the moderator, as will be seen, to regulate the business and 
proceedings of the meeting. 

The principal duties of the moderator are briefly defined by this act to be: to 
preside at the town meeting; to make announcement of the business of the meet- 
ting: to preserve order, and to decide all questions of order. See Sec. 4 of this 
article. 

After the meeting is organized, by the election and qualification of the proper 
officers, the moderator should announce that the meeting is organized and ready to 
proceed to business — that the first business in order will be the opening of the polls 
and proceeding to the election of such officers of the town as are to be elected by 
ballot. At the hour of two o'clock p. M., he should announce that the hour of two 
o'clock in the afternoon having arrived, the transaction of miscellaneous business is 
in order. In the absence of any rule to the contrary, it will be proper for the 
moderator to direct the order in which the various subjects for action should be 
taken up, and announce each as it comes up in its order tor action. 

It is the practice with all legislative assemblies to adopt standing rules for their 
government, which the presiding officer is to observe and enforce. It would not be 
improper for the electors of a town at town meeting to pursue a similar course, and 
adopt standing rules regulating the order of business and the manner of conducting 
all town meetings, not inconsistent with the law, to be observed and enforced by the 
moderator; this would greatly facilitate business, secure uniformity, and relieve the 
moderator from embarrassment in arranging the order of business at each meeting. 

The rules governing the conduct of deliberative assemblies are called " parliamen- 
tary rules." They are so called from their origin in the English Parliament. These 
rules, in process of time, as a whole have become very extensive, and, indeed, some- 
what intricate. In conducting a town meeting, it would be impracticable to attempt 
to observe that nicety in regard to these rules which is adhered to in legislative 
assemblies. 

An important feature in parliamentary practice is, that the sense of the meeting is 
taken through the agency of a motion, made by some member and seconded by 
another. After a motion is thus made and seconded, the presiding officer proceeds 
promptly to state it to the meeting, thus : " Gentlemen, it is moved that " [staling the 
motion as made]. " Those in favor of this motion will say aye." " Those opposed will 
say no." If the motion prevails, he should announce the vote thus : " It is carried 
in the affirmative," or, "The motion has prevailed." If the motion fails, then say, 
" The motion is lost." 

After the moderator has thus declared the vote, it becomes the sense of the meet- 
ing, and will stand as such until rescinded or reconsidered by another motion made 
for that purpose. 

Where a vote is nearly equal, and it is difficult to determine the result, the moder- 
ator should not hastily declare the vote: but should say, "The ayes seem to have it." 
or. " The noes seem to have it." If no one interposes, he will declare the result as it 
seems to him. If any one wishes to interpose, deeming that it seems to the moder- 
ator differently from the fact, he should do so by promptly calling for a division. 
This may be done by a "show of hands." by rising, or by literally dividing the 
house — that is, those voting in the affirmative'all going to one side of the room, and 
those in the negative going to the other. After the vote has been declared by the 
presiding officer, it is too late to call for a division. 

It is a general rule that a motion to lay a proposition on the table, and a motion 
to adjourn, is not open to debate. But otherwise with a motion to lay on the table 
for a time limited, or to adjourn to a day certain. 

The moderator should be prompt in p'utting motions. It is no part of his duty to 
invite debate. 

Parliamentary rules, as existing by custom, may be modified by rules fixed by the 
assembly. 

On the subject of parliamentary law generally, see Appendix Post, p. 375. 



70 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

Entry to be direction, and all rules and regulations made by such meeting, 
which entry shall be signed by himself and the moderator of 
the meeting. (1) 

(1) Form of Minutes of Proceedings of Town Meeting. 

At the annual town meeting held in the town of , county of 

and State of Illinois, at [state place of meeting], on the 



day of , A.D. 18 — , the meeting was called to order by F. C, 

town clerk. N. S. was duly chosen to preside as moderator, who, 
being first duly sworn by A. S., Esq., a justice of the peace in said 
town, entered upon the duties of his office. 

The polls for the election of officers were opened, proclamation 
thereof being first duly made by the clerk. % 

The hour of two o'clock in the afternoon having arrived, and the 
general business of the day being now in order, 

The following named persons were chosen overseers of highways 
for the ensuing year, in the following road district, to wit : [Here 
give the names of persons and number of districts for which they are 
chosen.'] 

On motion of Mr. J. C, ordered that a pound for impounding ani- 
mals be established and erected at [here state where], within sixty 

days from this date, not to exceed in cost the sum of dollars, 

and that the same be erected and constructed under the direction of 
the pound master. 

Mr. W. B. offered the following resolution, which, on motion, was 
adopted: 

Resolved, That, [set forth the resolution]. 

On motion, the following by-laws were adopted : [Set forth copy of 
the by-laws as adopted.] 

A request by twenty -five electors having been duly filed with the 
town clerk, that a change be made in the place of holding town meet- 
ings to [state the place designated], and notice thereof having been in- 
cluded and given in the notice of this annual town meeting, a vote 
was had thereon by ballot, w r hich resulted as follows : For changing 
the place of holding town meetings to [name of place proposed], one 
hundred votes. Against changing the place of holding town meetings, 
ninety votes. A majority of all the votes cast being in favor of the 
proposed change [or as the case may be], the place of holding town 
meetings was declared changed to [state the place]. 

[In like manner set forth each order or direction as they transpire ; after 
which, at the close, set forth the statement of the canvass of votes, as directed 
by section 10 of this article, post, p. — .] 

On motion, meeting adjourned without day. 

F. C, Town Clerk. 
N. S., Moderator. 

In case there is no town clerk, or he is absent, at the opening of the town meet- 
ing, the entry in the minutes of the meeting may be as follows : 

The town clerk not being present [or as the case may be], on 
motion, Mr. L. M., one of the voters present, was elected by acclama- 
tion as chairman, whereupon the electors proceeded to choose one 
of their number to preside as moderator of the meeting, and Mr, 
A. B. was chosen as such moderator. 

The moderator mav be chosen by ballot; this mode of choosing moderator is the 
rule in some of the eastern States, where the position is considered an important 
one, and the choosing is often zealously contested. 



ART. Vni.l MODE OF OONDUCTING TOWN MEETINGS. 71 

SEC. 3. If there is no such clerk present, the meeting shall Clerk pre Cm. 
choose a clerk pro tern., who shall take a like oath as that re- 
quired of the moderator, and shall act as clerk of the meeting. 

S EC. 4. The moderator of such meeting shall preside thereat, Moderator 
make announcement of the business before the meeting, pre- presl e ' 
serve order, and decide all questions of order. 

Sec. 5. All questions upon motions made at town meetings Majority 
shall be determined by a majority of the electors present and declde ' 
vo tiller and the moderator shall ascertain and declare the result Result, 
of the vote upon each question. (1) 

Sec: 6. When the result of any vote shall, upon such declar- Vote made 

. J ,, i 1 i certain by 

ation, be questioned by one or more of the electors present, the dividing, 
moderator shall make the vote certain by causing the voters to 
rise and be counted, or by dividing off. 

^ec. 7. When the business of the meeting is concluded, tne ^iudS ineS3 
moderator shall make announcement thereof, and after such 
announcement is made all miscellaneous business shall be 
deemed concluded for that day, unless the electors shall, at the 
time of such announcement, order otherwise; but in no event 
shall any question which has been disposed of before such 
announcement be thereafter reconsidered, unless the motion Reconsid- 
therefor is sustained by a number of votes equal to at least a 
majority of all the names entered on the poll list on that day 
up to the time of making such motion. 

Sec. 8. If any person shall conduct in a disorderly manner Disorderiy 
at any such meeting, and, after notice from the moderator, 
shall persist therein, the moderator may order him to with- 
draw therefrom, and on his refusing may order any constable m ay S a rrest. 
or other person to take him from the meeting and confine him 
in some convenient place until the meeting is adjourned; and 
the person so refusing to withdraw, shall, for such offense, for- 
feit a sum not exceeding ten dollars, for the use of the town, penalty. 

In case of choosing a clerk pro tern, (time being) of the meeting, the following may 
be the form of entry in the minutes: 

The town clerk being absent, E. F. was chosen clerk pro tern., and 
was duly sworn. 

It seems that the clerk's record of the proceedings of a town meeting will be con- 
sidered sufficient evidence of the facts therein set forth, as transpiring at that meet- 
ing. Briggs v. Murdoch, 13 Pick. R., 305. 

One who warn formerly a town cleric, but is no longer in the office, cannot 
amend a town record made by him when town clerk ; but if he continue in office, 
he may amend the record of a previous term; the intervening election is held to be 
substantially a continuance of the clerk in the same office. JIarlndl v. LMleton, 13 
Pick, li., 229. 

(1) Totes of a iown at town meeting, unless carried into execution so that indi- 
vidual rights have vested, may be altered or rescinded by subsequent meetings. 
Denton v. Jackson. 2 Johns. Ch. R., 320. 

A Unvn meeting cannot properly audit accounts against the town. This Juty 
is conferred on town auditors. People v, Onondaga, 16 Mich. R., 254. See Art. XIIL-, 
Sec. 4, pod, p. 84. 



72 



TOWNSHIP ORGANIZATION ACT. 



[div. I. 



Qualification 
cf voter. 



Election to 
proceed. 



to be recovered in an action of debt in the name of the town, 
before any justice cf the peace of the town.(l) 

Sec. 9. No person shall be allowed to vote or participate in 
any such meeting unless he shall be a qualified elector of such 
town.(2) 

Sec. 10. When the miscellaneous business of that day shall 
have been transacted, the moderator shall announce the polls 
of the election open, and the election shall proceed. 



ARTICLE IX. 



QUALIFICATION AND TENURE OF OFFICE. 



Eligibility to 
town office. 



Take oath of 
office. 



Section 1. No person shall be eligible to any town office 
unless he shall be a legal voter, and have been one year a resi- 
dent of such town. (3) 

Sec. 2. Every person elected or appointed to the office of 
supervisor, town clerk, assessor, commissioner of highways or 



(1) TJie order of the moderator to take a %>erson from the meeting for disor- 
derly conduct, need not be in writing, but may be given to the constable, or other 
person, verbally; but if it is desired to recover the forfeiture or penalty provided 
for, it will be ah independent matter, and must be prosecuted as in other "cases of 
fines or penalties going to the town. Parsons v. Brainerd, 17 Wend. R., 522. 

TJie 2>roceedin{/ to collect a fine for disorderly conduct at town meeting, the 
law contemplates shall be conducted like any ordiuary suit before a justice of the 
peace. The process may be the general form of summons prescribed by the statute. 
See Haines' Treatise, new edition, p. 182. 

(2) As to ivho are qualified electors of the town, the Constitution of Illinois, 
Art. IV., entitled " Suffrage," declares as follows : 

Section 1. Every person having resided in this State one year, in the county ninety 
days, and in the election district thirty days next preceding any election therein, 
who was an elector in this State on the first day of April, in the year of our Lord one 
thousand eight hundred and forty-eight, or obtained a certificate of naturalization 
before any court of record in this State prior to the first day of January, in the year 
of our Lord one thousand eight hundred and seventy, or who shall be a male citi- 
zen of the United States above the age of twenty-one years, shall be.entitled to vote 
at such election. 

Sec. 2. All votes shall be by ballot. 

Sec 3. Electors shall, in all cases, except treason, felony, or breach of the peace, be 
privileged from arrest during their attendance at elections, and in going to and 
returning from the same. And no elector shall be obliged to do military duty on 
the days of election, except in the time of war or public danger. 

Sec. 4. No elector shall be deemed to have lost his residence in this State by reason 
of his absence on the business of the United States or of this State, or in the military 
or naval service of the United States. 

Sec. 5. No soldier, seaman, or marine in the army or navy of the United States, 
shall be deemed a resident of this State in consequence of being stationed therein. 

Sec. 6. No person shall be elected or appointed to any office in this State, civil or 
military, who is not a citizen of the United States, and w'ho shall not have resided in 
this State one year next preceding the election or appointment. 

Sec 7. The General Assembly shall pass laws excluding from the right of suffrage 
persons convicted of infamous crimes. 

See also Div. VIII., " Elections," Sees. 65, 66, post, p. 311, 312. 

(3) Town officers must be inhabitants of the town in which thev are chosen, 
and thev cease to be officers when they cease to be inhabitants. Bane V. Greenwich, 1 
Pick. R* 120. 

No person is eligible to a town office unless he shall have been a resident of the 
town for one year next preceding the time of his election. Where L.. in the vear 
1860, was a resident of the town of Cicero ; in 18G1 removed his family to the city of 
Chicago, adjoining the town : in the same year entered the armv. leaving his family 
in Chicago; in 1864 had a farm and lived in Missouri; in March, 1866, returned to 
Cicero, and in November was chosen a constable of the town. Held, that his resi- 



ART IX.] QUALIFICATION AND TENURE OF OFFICE. 73 

collector, before lie enters upon the duties of his office, and 
within ten days after he shall be notified of his election or 
appointment, shall take and subscribe, before some justice of fitedwitto 

ace or town clerk, the oath or affirmation of office pre- toWn clerk - 
scribed by the Constitution, which shall, within eight (lays 
thereafter, be filed in the office of the town clerk. (1) 

Sec. 3. If any person elected or appointed to either of the Ne £ lectt0 take 

rr i lin i i ii-i oath. 

omces above enumerated shall neglect to take and subscribe 
sucli oath, and cause the certificate to be filed as above 
required, such neglect shall be deemed a refusal to serve. 

-i. Every person elected or appointed to the office of Pound master 

v *. i l • 8.CC6PL OniCC. 

pound master, before he enters on the duties of his office, and 
within ten days after he shall have been notified of his elec- 
tion or appointment, shall cause to be filed in the office of the 
town clerk a notice signifying his acceptance of such office. 

denoe could only be counted from March preceding the election ; therefore he could 
not hold the office legally. Laimbeer v. The People ex rel., 48 111. R., 400. 

The right of an officer cannot be determined by an action of replevin of its appurten- 
ances. Desmond v. McCarthy, 17 Iowa R., 525. 

And an officer dejacto is entitled to the possession of his office during the proceed- 
ings to oust him from it. Leach v. Cassidy, 23 Ind. R., 449. 

(1) The term "notified," as used in the law, would seem to import a formal 'notice, 
and not mere knowledge on the part of the person notified. Potwine's Appeal, 51 
Conn. R., 387. 

Form of Oath to be Taken and Subscribed by Toivn Officer. 
State of Illinois, \ 

County, | ss - 

I, A. B., do solemnly swear [or affirm, as the case may be~] that I will 
support the constitution of the United States and the constitution of 
the State of Illinois, and that I will faithfully discharge the duties of 
the office of {here insert the title of the office] according to the best of 
my ability. A. B. 

Taken and subscribed before me this day of , A.D. 18 — . 

C. D., Town Clerk. 

TJie forraoing is the general form of official oath prescribed by the Con- 
stitution. Art. V., Sec 25. 

Supervisors are required (See Div. IX. " Counties and Countv Affairs," Sec. 52, port, 
p. 350) to lay before the board of supervisors, at their first meeting after the annual 
town election, certificates of their election ; each supervisor will, therefore, after his 
qualification, he entitled to a certificate of his election, which should be issued by the 
town clerk, and may be in the following form : 

Form of Supervisor's Certificate of Election. 
County, 



Town of 

I, J. G., town clerk of said town of— — , do hereby certify that 

at the election at the annual town meeting in said town, on the 

day of , A.D. 18 — , W.H. was duly elected supervisor of said 

town [or was, on the day of , A.D. 18 — , duly appointed, 

etc.] ; that he has been duly qualified as such by taking the oath of 
office and giving bond as required by law. 

In witness whereof I have hereunto set my hand this day 

of — , A.D. 18— . 

J. G., Town Clerk. 



74 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

A neglect to cause such notice to be filed shall be deemed a 
refusal to serve. (1) 
2jiu!cto? ti0n ° f ^ec. 5 " Every person elected to the office of collector, 
before he enters upon the duties of his office, shall give the 
bond required by law. (2) 



Neglect of 

collector. 



Sec. 6. If any person elected to the office of collector shali 
not give such security and take such oath as is required above, 

(1) Form of Notice of Acceptance of Overseer of Highways or Pound 

Master. 
To S. L., Town Clerk of the town of : 

Sir — Having been elected [or appointed] overseer of highways for 

district No. , in said town [or pound master for said town, as the 

case may be], on the day of , A.D. 18 — , I hereby notify 

you that I accept the office. 

Witness my hand this day of , A.D. 18 — . C. E. 

TJie failure of a touti officer to take and subscribe the oath or affirmation of 
office within the time prescribed, vacates the office. State v. Matheney, 7 Kans. R., 
327. But where the question of vacancy is brought in controversy, it is held that the 
simple fact of failure to take the oath is not sufficient ; that it must appear that not 
taking the oath in time was by the fault or failure of the officer elect. Boss v. Wil- 
liamson, 44 Ga. R., 501 ; State v. Falconer, 44 Ala. R., 696. 

(2) For form of collector's bond, and time of executing the same, see Div. VII. 
"Revenue," Sec. 133, post, p. 24b. 

Liability of Collectors and Sureties. Although the proceedings of a town 
are very irregular and informal, at a meeting where assessor, treasurer and collector 
of taxes are elected, and taxes voted to be assessed, yet the collector is legally bound 
to pay over to the treasurer de facto all taxes voluntarily paid to him by'the tax 
payer. Trescotl v. Moan, 40 Maine R., 347. 

The neglect of the proper authorities to compel the collector to promptly account 
for monevs collected, will not have the effect to release the sureties onliis bond. 
Eeadfield V. Shaver, 50 Maine R., 36. 

Where a person was collector of taxes for two successive years, and at the end of 
the second year proved to be a defaulter, he had a right to appropriate payments 
made by him to the town either year, at the time he made each payment; if he 
failed so to appropriate them, the town might appropriate them as they desired ; and 
if no appropriation was made by either, the law would appropriate such payment 
to the oldest debts, although the whole deficit is thereby made to fall on the second 
year. When the sureties of such collector on his official bond are not the same for 
the second year as the first, in a suit on one of the bonds for an alleged default, it is 
for the defendant to show what part of the deficit belonged to each year, Beadfield 
y. Shaver, 50 Maine R., 36. 

A collector's bond, dated August 15, 1854, and reciting that he was " chosen collec- 
tor of taxes for the year ensuing," it appearing that he was chosen in 1854, his tax 
bills bearing date that year, and that he collected that year's taxes, will be deemed 
to have reference to the municipal year 185i. Trescott v. Moan, 50 Maine R. 347/ 

The sureties on a tax collector's bond are bound, although the collector never took 
the oath of office, if in fact ho acted as collector. Lyndon v. Miller, 36 Vt. R., 329. 

Held, in California, that taxes collected by a tax collector can be recovered from 
him in a single action, in the name of the people, although a part of them are due 
to the State and a part to the county. People v. Love, 25 Cal. R., 520. 

To maintain an action against a collector for money collected by him and not paid 
over at ihe time required, no previous demand of him is necessary. Wtntworth v 
Gove, 45 N. H. R., 160. 

The section of the Revenue law (Sec. 134. post p. 248) making a town collector's 
bond a lien against his real estate, does not repeal the homestead exemption act, so 
far as his bond is concerned. A judgment rendered against a town collector upon 
his official bond, is like &r\f other judgment, and creates no lien which can be 
enforced against his homestead, except in the mode pointed out by statute. The 
homestead right is protected against all liens and sales, and against all modes of 
conveyance, whether by deed absolute or by mortgage, unless released or disposed 
of in the mode pointed" out in the homestead act. When the value of the homestead 
exceeds Sl,000, on paying that to the owner, it may be sold under an execution : and 
in such a contingency a judgment, whether upon the official bond of a collector or 
otherwise, mav be enforced, but it dops not create a lien against the homestead of 
the debtor. Bumeet al. v. Gossett, 43 111. R., 297. 



..v.j QUALIFICATION AND TENURE OF OFFICE. 75 

within the time limited for that purpose, such neglect shall he 
deemed a refusal to serve. 

BO. T. If any person elected to the office of supervisor, Pe^iy for ^ 
town clerk, assessor or commissioner of highways, shall refuse 
to serve, he shall forfeit to the town the sum of twenty-five 
dollars.(l) 

Sec. 8. If any town officer who is required by law to take I j a tru ^ on Jn to 
the oath of office shall enter upon the duties of his office before 
he shall have taken such oath, he shall forfeit to the town the 
sum of fifty dollars. 

Sec, 9. Town officers, except as otherwise provided, shall Term of office. 
hold their offices for one year, and until others are elected or 
appointed in their places and are qualified. 

Sec. 10. Whenever the term of any supervisor, town clerk Books and 
or commissioner of highways shall expire, and other persons delivered to 
shall be elected or appointed to such office, it shall be the successor - 
duty of such successor, immediately after he shall have entered 
upon the duties of the office, to demand of his predecessor all 
the books and papers under his control, belonging to such 
office. 

Sec. 11. Whenever either of the officers above named shall successor 

,, rr -l , • i ,i demand books 

resign, or the omce become vacant many way, and another and papers, 
person shall be elected or appointed in his stead, the person 
so elected or appointed shall make such demand of his prede- 
cessor, or of any person having charge of such books and 
papers. 

Sec. 12. It shall be the duty of every person so going out Booksand 

. «/ jt o o papers to 

of office, whenever thereto required pursuant to the foregoing successor on 

provisions, to deliver, upon oath, all the records, books and oa ' 

papers in his possession or in his control belonging to the office 

held by him ; which oath may be administered by the officer 

to whom such delivery shall be made. It shall also be the 

duty of every supervisor and commissioner of highways, so 

going out of office, at the same time to pay over to such sue- Bay over 

. . monev 

cessor the balance of moneys remaining in his hands as ascer- 
tained by the auditors of town accounts. (2) 

(1) A person who has been cliosen or appointed to a town office, and neglects 
or refuses to serve, whereby he incurs the penalty imposed by law, caDnot be again 
chosen or appointed to such office, or made liable to a second penalty for the second 
refusal to act. Haywood v. Wheeler, 11 Johns. R., 432. 

It is held that an action for the penalty imposed will not lie except where the 
town proceed to a new election. That merely neglecting to file notice of the accept- 
ance with the town clerk is not sufficient: the object of the law being to enforce the 
performance of the duties, and if the town proceed to anew election, then to exact 
the penalty. Winnegar v. Jiae, 1 Cowen R., 258. 

(2) Form of Oath to be Administered to Town Officers on going out of Office. 

You do solemnly swear [or affirm] that you have delivered to A. 

B. [name of successor in office] all the records, books and papers in 



76 



TOWNSHIP ORGANIZATION ACT. 



[DIV. I. 



remand of 
administrator. 



Deliver on 
oath. 



Sec. 13. Upon the death of any of the officers enumerated, 
the successor of such officer shall make such demand as above 
provided of the executors or administrators of such deceased 
officer ; and it shall be the duty of such executors or adminis- 
trators to deliver, upon the like oath, all records, books and 
papers in their possession or under their control, belonging to 
the office, held by their testator or intestate. 



ARTICLE X. 

VACANCIES IN TOWN OFFICES, AND THE MANNER OF FILLING 

THEM. 



Vacancy in 
town office, 
how filled. 



Warrant of 
appointment. 

Unexpired 
term. 



Vacancy in 
board of 
appointment. 



Section 1. Whenever any town shall fail to elect the proper 
number of town officers to which such town may be entitled by 
law, or when any person elected to any town office shall fail to 
qualify, or Avhenever any vacancy shall happen in any town, 
from death, resignation, removal from the town, or other cause, 
it shall be lawful for the justices of the peace of the town, 
together with the supervisor and town clerk, to fill the vacancy 
by appointment, by warrant under their hands and seals ; and 
the persons so appointed shall hold their respective offices 
during the unexpired term of the persons in whose stead they 
have been appointed, and until others are elected and appointed 
in their places ; and shall have the same powers and be subject 
to the same duties and penalties as if they had been duly elected 
or appointed by the electors. (1) 

Sec. 2. Whenever a vacancy shall occur, from any cause, in 
any or either of the offices enumerated in the foregoing section, 
as composing the board of appointment for the appointing of 
town officers in case of vacancy, it shall be lawful for the re- 
maining officers of such appointing board to fill any vacancies 



your possession or in your control, belonging to the office of supervi- 
sor for the town of , so help vou God. 

(1) Form of Warrant of Appointment by Justices of the Peace, Supervisor 
and Town Clerk, to fill vacancy. 

To E. H., Esq., of the town of , in the county of , and 

State of Illinois, greeting : 

Whereas, at the annual meeting of said town, held on the day 

of April, A.D. 18 — . said town neglected to choose a [here insert the 
title of the office vacant], for the current year [or. as the case may be], 
whereby said office has become vacant. 

Therefore, we, reposing full confidence in your integrity and ability, 
have appointed and do hereby appoint you a [here insert the title of 
the office], for said town, to hold said office until some other person 
shall be chosen or appointed in your stead ; and you will have the 



. X.] VACANCIES — HOW FILLED. 77 

thus occurring, except in eases of vacancy in the office of jus- 
tice of the peace or constable. (1) 

Sec. 3. When any appointment shall he made, as provided warrant of 

. ,. J rr . , - i-i appointment 

in the two preceding sections, the officers making the same to be filed, 
shall cause the warrant of appointment to be forthwith filed in 



same powers, and be subject to the same duties and penalties as if 
you had been duly chosen by the electors of said town. 

In witness whereof, we have hereunto subscribed our names and 
affixed our seals, at , this day of , A.D. 18 — . 



J. P., Justice of the Peace. 
S. W., Justice of the Peace. 
J. C, Supervisor. 
W. G., Town Clerk. 



SEAL. J 
SEAL.] 
SEAL.] 
SEAL.] 



Wlicre the laic required the appointment of a collector of taxes to be in 
writing, but the appointment was made by parol, and a tax warrant issued to him 
upon such appointment, held, that although the appointment was irregular, the per- 
son thus appointed was an officer de facto, and his acts were valid as to the public 
and third persons. Hamlin v. Ding/nan, 5 Lans. R., (N. Y.) 61. 

One appointed to an office by a person having no authority, and commissioned 
by a person having no authority, is an officer de facto. Mailed v. Uncle Sam, etc., 1 
!>ev. R., 1SS; Sawyer v. Hayden, 1 Nev. R., 75. 

After the appointment of any person to a town office to fill a vacancy, the elec- 
tors cannot hold a special town meeting and fill such vacancy by election ; the 
person appointed will hold over until the expiration of the time for which his pre- 
decessor was elected. People v. Van Home, 18 Wend. R., 515. 

Before the board can appoint, a vacancy must in fact .exist. The vacancy can 
not be created by the mere act of the board declaring that a vacancy exists. Opin. 
Att'v Gen'l Colville, (.Minn.) May 2, 1867. 

No authority exists to appoint a person to an office, such as town assessor, who is 
not a resident* of the town, Opin. Att'y Gen'l Cole, (Minn.) Vol 1. 214. 

Concerning vacancies intotvn offices, see Div. VIII., "Elections," Sees. 124, 125. 
The provision's of these sections, it would seem, are intended to apply also to town 
omcers, as well as others, except that the resignation of town officers is to be made 
to the justices of the peace of the town, as provided by this act. Art. X., Sec. 4, 
post, p. 78. 

(1) In regard to vacancy in the office of justice of the peace and constable, 
the act concerning justices of the peace and constables (See Haines' Treatise — 
new edition p. 72) enacts as follows: 

Sec. 3. When a vacancy occurs in the office of a justice of the peace or constable 
by death, resignation, removal from the town or precinct, or other cause, if the 
unexpired term exceeds one year, his office shall be filled by special election, and it 
shall be the duty of the town clerk, in counties under township organization, and 
county clerks, in counties not under township organization, in case of such vacancy, 
to issue his order to the judges of election of the proper town or precinct, requiring 
them on a certain day therein named, not less than twenty days from the issuing of 
such order, to hold an election to fill such vacancy, and at the same time the county 
clerk shall deliver to such judges three copies of a notice of such election, two of 
which notices shall be posted up in such town or precinct in the most public places 
therein. And an election shall be held pursuant to such order, and conducted as 
other elections. If the unexpired term of his office does not exceed one year, the 
vacancy shall be filled by appointment by the county board. 

Form of Order of Special Election for Justice of the Peace or Constable. 

To the judges of election of the town of , in the county of 

, Illinois . 

You are hereby ordered and required to hold a special election in 

said town on the day of , A.D. 18 — , for the election of one 

justice of the peace [or constable, as the case may be], to fill a vacancy 
existing in that office in said town. Herewith are delivered to you 
three copies of a notice of such election, two of which should be 
posted up in said town, in the most public places therein. 

Given under my hand, tins day of , A.D. 18 — . 

A. B. } Town Clerk. 



78 



TOWNSHIP ORGANIZATION ACT. 



[div. I. 



the office of the town clerk, who shall immediately give notice 
to each person appointed. (1) 

Sec. 4. The justices of the peace of a town may, for suf- 
ficient cause shown to them, accept the resignation of any 
town officer of their town, and whenever they shall accept any 
such resignation, they shall forthwith give such notice thereof 
to the town clerk of the town, who shall make a minute thereof 
upon the town records : Provided, that in towns having more 
than two justices of the peace, such resignation may be 
accepted by any two of them ; and in case of the resignation 
of a justice of the peace or constable, the town clerk shall 
immediately, upon receiving notice thereof, transmit a copy of 
such notice to the county clerk. (2) 



Justices may- 
accept 
resignation. 



Proviso. 



Justices and 
constables. 



Form of Notice for Special Election of Justice of the Peace or Constable. 

SPECIAL ELECTION. 

Notice is hereby given that a special election will be held in the 

town of , in the county of , and State of Illinois, at , 

on the day of , A.D. 18 — , for the purpose of electing one 

justice of the peace lor constable, as the case may be], to fill a vacancy 
existing in that office in said town, which election will be opened at 
eight o'clock in the morning, and continue open until seven o'clock 
in the afternoon of that day. 

Dated at , this day of , in the year of our Lord 



one thousand eight hundred and 



A. B., Town Clerk. 



It would seem proper tJiat special elections for justices of the peace and con- 
stables should be held in the manner that regular town electious are held, under 
this act ; that is, through the organization of a town meeting. It has been held that 
where a town election is authorized to be held, and no mode of conducting it is pro- 
vided, that it should be conducted according to the township organization act, and 
not under the general election law. The People ex rel., etc., v. Dxticluer, 56 111. R.. 1-44. 

(1) Form of Notice by Toivn Clerk to one appointed to fill vacancy. 

To R. H., Esq., of the town of , in the countv of , and 

State of Illinois . 

You are hereby notified that on the day of , A.D. 18 — , 

J. P., S. W., J. C. and W. G., justices of the peace, supervisor and 
town clerk of said town, by their warrant of that date, under their 
hands and seals, appointed you to the office of [here insert the title of 
the office] for said town, which warrant has been duly filed in my office. 

Given under my hand, this day of , A.D. 18 — . 

W. G, Town Clerk. 

(2) Form of Resignation of Town Officer. 

To G. B. and G. F., Esqrs., justices of the peace of the town of , 

in the county of , and State of Illinois : 

By reason of [here state the cause of resignation] I hereby resign the 
office of commissioner of highways for said town [or as the case may 
be], and respectfully ask that you may accept my resignation. 

J, B. 

Dated at , this day of , A.D. 18 — . 

"We, the undersigned, justices of the peace of the said town of 



ART. XT.] SUPERVISOR AND HIS DUTIES. 



70 



ARTICLE XI. 
THE SUPERVISOR AND HIS DUTIES. 

Section 1. The supervisor, before entering upon the duties supervisor give 
of his office, shall give bond to the town, with one or more 
sureties, in at least double the amount of money which may 
come into his hands, conditioned for the faithful discharge of condition, 
his duties as such supervisor, and that he will safely keep and 
pay over all money entrusted to his keeping as such super- 
visor — such bond to be approved by the town clerk, and filed Approval, 
in his office, with such approval indorsed thereon. Whenever 
the town clerk shall ascertain that such bond has been forfeited, 
he shall institute suit against such supervisor. If the clerk 
shall fail or refuse to institute such suit, any person interested suit on bond, 
therein many institute the same.(l) 

, being satisfied of the sufficiency of the cause shown above, 

do accept of the resignation of the said J. B 
Witness our hands, this day of , 18 — . 



G* F I ^ ust ^ ces °f ^e Peace. 



If the resignation of an officer be not accepted, he remains in office. Bouv. 
Law Diet., title " Resignation," 4. Dev. N. C. R., 1. 

An office may be vacated by abandonment, or resigned by parol, and the exist- 
ence of a vacancy in either case, will depend upon all the facts and circumstances 
attending the same. State v. Allen, 21 Ind. R., 516. 

Any voluntary act of an officer, Avhich permanently disables him to perform the 
duties of his office, such as enlistment in the military service of the United States, 
will amount to a constructive resignation of his office by abandonment. State v. 
Allen, 21 Ind. R.. 516 ; Bryan v. Catlell, 15 Iowa R. (7 With.), 538. 

One who has been elected to an office cannot resign it until he has been qualified, 
and has entered into possession of it. Miller v. Board of Supervisors, 25 Cal. R., 93. 

A county superintendent of schools addressed and presented to the county court 
of his county a paper, as follows: 

"The undersigned hereby tenders his resignation as county superintendent of 
schools." 

This paper was received by the court, and handed to their clerk to be placed on 
the files of the court, and was by him so filed. This was a virtual acceptance of the 
resignation, which was not subject to be revoked by the party presenting it. It was 
not necessary to snter an order upon the records accepting the resignation in form. 
Pace v. The People ex rel., etc., 50 111. R., 132. 

(1) Form of Supervisor's Bond. 

Know all men by these presents, that we, J. G., A. D. and J. F., of 

the town of , in the county of , and State of Illinois, are held 

and firmly bound unto the said town of , in the sum of [here 

insert double the amount of money that tiiay come to his hands'], for the 
payment of which well and truly to be made, we bind ourselves, our 
heirs, executors and administrators, and each of them, jointly, sev- 
erally and firmly, by these presents. Sealed with our seals, and 
dated this day of ■ , A.D. 18—. 

The condition of the above obligation is such, that whereas, the 
above bounden J. G. has been chosen supervisor of the said town of 

for the current year. Now, therefore, if the said J. G. shall 

faithfully discharge his duties as such supervisor, and shall safely 
keep and pay over all money entrusted to his keeping as such super- 



80 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

supervisor Sec. 2. The supervisor of each town shall receive and pay 

i moneys. ^ ^ moneys raised therein for defraying town charges, ex- 
cept those raised for the support of highways and bridges. (1)* 

Prosecute suits. Sec. 3. He shall prosecute, in the name of his town or other- 
wise, as may be necessary, for all penalties or forfeitures given 
by law to such town, or for its use, and for which no other 

visor, then the above obligation to be void and of no effect, otherwise 

to remain in full force and effect. 

J. G. [seal.] 
A. D. [seal.] 
J. F. [seal.] 

Form of Cleric's Approval to be indorsed on Supervisor's Bond. 

I approve the within [or above] bond, this day of , A.D. 

18—. W. M., Town Clerk. 

Hie town cleric being required to approve the bond of the supervisor, he would 
seem to be the proper person to ascertain and fix the amount to be inserted in the 
bond. 

A recovery may be had on a bond given for the benefit of the public, although 
it has not been approved as required by law. People v. Johr, 22 Mich. R., 461. 

The supervisor of a town is not, in the ordinary acceptation of the term, or, in 
other words, is not for all purposes, the agent of the town, and the town is not liable 
for his errors in judgment. Davis v. Kalamazoo, 1 Mich. (N. P ), 16. 

(1) The supervisor, as custodian of the funds of the town, must pay out the 
same according to law ; he is not required, nor permitted, to pay over money in obe- 
dience to an illegal vote of the town. Towns have no right to give away money col- 
lected of the inhabitants by taxation. Hooper v. Emery, 2 Shep. (.Maine) R., 375. 

Township treasurers, under the school law. are held to be insurers of the funds 
coming to their possession, and nothing can relieve them from their obligation to 
safely keep and pay over such funds, but the act of God or of the public enemy. 
Thompson et al. v. Board of Trustees, etc., 30 111. R., 99. And such is doubtless the rule 
in regard to supervisor, as the custodian of the town funds. 

A township trustee who, by law, was custodian of the town funds, made a contract 
for the township, whereby he became liable, in his official capacity, to pay a certain 
sum of money. He afterwards made payment in goods of his own, or by giving 
credit on account due him personally by the other party, and with his consent* who 
thereupon released the township. Held, that the fact that the trustee retained a cor- 
responding amount of the township funds applicable to that purpose, did not consti- 
tute a conversion of the funds of the township to his private use, or render him 
liable therefor in a suit on his official bond. State v. Parker, 33 Ind. R., 285. 

The law provides no express mode by which the supervisor shall be governed 
in paying out the funds of the town. He can pay only such claims as are properly a 
town charge. As to what is a town charge, has been left to the town auditors to 
determine. (See Art. XIII., post, p. 84.) The certificate of the town auditors, show- 
ing what claims have been allowed against the town, being filed with the town clerk, 
it would seem proper that he should give the party in whose favor a claim is allowed, 
some evidence of its being audited; this may be done by an order on the supervisor, 
somethiLg in the nature of a certificate, reciting the fact of auditing as appears from 
the files of the town clerk's office. When this order or certificate is paid, the receipt 
of the party in whose favor the claim is audited may be indorsed thereon, which 
will form a voucher to the supervisor for payment of the amount. Such an order, if 
the acceptance of the supervisor is written .thereon, and is issued for an amount 
properly audited, would be good in the hands of the payee, or the person to whom 
it may be indorsed. It would differ, however, from commercial paper, in this, that 
it would continue subject to all equities between the original parties. Emery v. 
Mariaville, 56 Maine R., 315. But the town would not be liable until after demand 
and refusal of payment. Packard v. Bovina. 24 Wis. R., 382. 

The following may be the form of the clerk's order on the supervisor for payment 
of a claim which has been audited by the town auditors : 

Form of Town Clerk's Order on Supervisor. 

Town Clerk's Office, 



State of Illinois, \ Township, 



ss. 



County. ( °° m 18—. 

The supervisor of the town of will pay to , or order, . 

the sum of dollars and cents, being the amount duly 

* Amended, see post p. 94. 



ART. XL] 



sri'KU VISOR AND HIS DUTIES. 



81 



officer is specially directed to prosecute, except as may be other- 
wise directed by the town meeting. (1) 

Sec. 4. He shall keep a just and true account of the receipts Keep accounts, 
and expenditures of all moneys which shall come into his hands 
by virtue of his office, in a book to be provided for that pur- Book. 
it the expense of the town ; and said book shall be deliv- 
l to his successor in office. (2) 

Sec. 5. On Tuesday preceding tne annual town meeting, he Account with 
shall account to the board of auditors for all moneys received 
and disbursed by him in his official capacity. 

Sec. 6. At every such accounting, the justices and town certificate in 
clerk, or a majority of them, shall enter a certificate in the book? 1S * 
supervisor's official book of accounts, showing the state of his 
accounts at the date of his certificate. (3) 



audited and allowed him on the 



day of 



AJD. 18—, as 



appears from the certificate of town auditors of said town on file in 
my oilice, for [liere set forth for what the claim is audited]. 

, Town Clerk. 

The following may be the form of receipt of payment to be indorsed on the fore- 
going order or certificate : 

Form of Receipt of Payment to be indorsed on Town Order. 

Eeceived of , supervisor, dollars and cents, in 

full of the within. 



(I) A. supervisor of a town, in discharging his duties as such, acts not in his 
natural, but his official capacity; and is pro tanto a corporation. He has capacity of 
suing and being sued so far as his trust is concerned. The right to sue is incident to 
his office, and passes to his successor. If, in a suit brought by or against a supervi- 
sor as such, he fails in his action, execution goes against him personally, and his 
remedy is against the town. So held in New York. Jansen v. Ostrander, 1 Cowen 
R.. 670. 

Special authority from the electors of a town is not necessary to enable the super- 
visor to defend a suit against the town, or to take an appeal therein. Homer v. Town 
of Polk, 6 Wis. R., 350. 

(2) Form of keeping Supervisor's Booh. 
M. L., supervisor of the town of , in account with said town. 

Dr. Cb. 



DATE. 1 


DOLLS. 


era. 


DATE. 




DOLLS. 


CTS. 


IS— 

Feb.l 


Toam't rec'dof col- 
lector of the town. 


150 


50 


18— 
Jan'y 1 

April 1 


By am't paid for su- 
pervisor's book... 

By am't paid F. B. 
for services .as 
town auditor 


5 

1 


00 
00 



3) Form of Certificate of Justices of the Peace and Town Clerk, to be 
entered in Supervisor's Book upon examination of his Accounts. 

— Co ? nty }ss. 
lown of . J 

We, the undersigned, the justices of the peace and town clerk of 

the said town of , do hereby certify that we have this day 

examined the foregoing account [the certificate being entered at the close 

of the account at every such accounting'] of M. L., supervisor of said town, 

and that we find the same in all respects correct and true, and that 

6 



82 



TOWXSHIP ORGANIZATION ACT. 



[DIV. I. 



Supervisor 
attend county 
board. 



Eeceive 
accounts. 



jlectofduty 



Peimlt 



Assistant 
supervisors. 



cuperrviiors in 
Cook county 



Sec. 7. The supervisors of each town, except the supervi- 
sors of towns in Cook county, shall attend all meetings of the 
county board of the county. (1) 

Sec. 8. He shall receive all accounts which may be pre- 
sented to him against the town, and shall lay them before the 
board of town auditors at or before their next meeting. 

Sec. 9. If any supervisor shall refuse, or shall willfuny 
neglect to perform any of the duties of his office contained in 
the preceding sections of this article, he shall forfeit to the 
town the sum of fifty dollars, and be disqualified to act as the 
supervisor of said town. 

Sec. 10. Assistant supervisors shall have no power or duties 
as town officers, but shall be members of the county board of 
their respective counties, and shall have and enjoy the same 
powers and rights as other members. 

Sec. 11. The supervisors of towns in Cook county shall 
perform the same duties as supervisors of towns in other 
counties under township organization, except that they shall 
not be members of the county board, or exercise any of the 
powers thereof. They shall have the same compensation for 
their services as is or may be prescribed by law for similar 
services rendered by other supervisors of towns. 



ARTICLE XII. 



THE TOWN CLERK AXD HIS DUTIES. 



Custody of 
. records. 



Administer 
oaths. 



Section 1. The town clerk shall have the custody of all 
records, books and papers of the town, and he shall duly file 
all certificates or oaths and other papers required by law to be 
filed in his office. He is authorized to administer oaths and 
take affidavits in all cases required by law to be administered 
or taken by town officers.(2) 



dollars and • 



there appears at this date to be a balance of — 
cents in the hands of said supervisor. 
Witness our hands, this day of March, A.D. 18—. 

H L ' f Justices of the Peace. 

F." B.,' Town Clerk. 

(V) In regard to Cook county, the Constitution. Art. X., Sec. 7, provides as fol- 
lows : " The countv affairs of Cook county shall be managed by a board of commis- 
sioners of fifteen persons, ten of whom shall be elected from the city of Chicago, 
and five from the towns outside of said city, in such manner as may be provided by 
law." 

(2) When the town clerk files « paper in Jii.s office he should mate an entry 
thereof upon it, with the date of filing, in the following form : 

Form of Entry of Filing Paper by Toicn Cleric. 

Filed this day of , A.D. 18—. J. J., Town Clerk. 



XII.] TOWN CLERK AND HIS DUTIES. 88 

shall record in the book of records of his town Town clerk 
the minutes of the proceedings of every town meeting held JSSceedings 
therein, and shall enter in said book every order or direction, and by " laws " 

and all by-laws, rules and regulations made by any town 
meeting.(l) 

Sec. 3. He shall deliver to the supervisor, before the Deliver to 
annual meeting of the county board of the county, in each copieJo? votes, 
year, certified copies of all entries of votes for raising money 
made since the last annual meeting of the county board.(2) 

Sec. 4. He shall, annually, at the time required by law, certify taxes, 
certify to the county clerk the amount of taxes required to be 
raised for all town purposes. 

Sec. 5. If any town clerk shall willfully omit to make such Neglect of 
return, he shall be fined for each offense not exceeding ten dmy-penaty ' 
dollars. 

Sec. 6. Copies of all papers duly filed in the office of the certified copies 
town clerk, and transcripts from the town records certified by evidence - 
him. shall be evidence in all courts with like effect as if the 
originals were produced. (3) 

TTJiere a town clerk is required by law to perform a mere ministerial act, as 
the countersigning of bonds issued on a subscription to the stock of a railroad com- 
pany, it is no* his province, when called upon to do the act, to determine -whether 
the proper steps have been taken to authorize the issuance of the bonds. The law 
provides another mode in which that question could be properly determined (citing; 
The People v. Dean, 3 Wend. R., 438). Houston- v. The People ex rel., etc., 55 111. R., 398. 
This case is nor in harmony, however, with the ruling in the case of The People ex 
rel. Siine v. The Board of Supervisors of Vermilion Co., 47 111. R., 256. 

(1) It is competent for one chosen town clerk to make a record of his own 
election and qualification. Briggs v. Murdoch, 13 Pick. R., 305. 

The by-laws or ordinances of a town, printed and pasted into the regular 
record book for containing the same, are admissible in evidence, as being duly 
recorded. Eubanks v. Town of Ashley, 36 111. R., 177. 

(2) Form of Certificate of Town Clerk to accompany Book of Entries of 
Votes for liaising Money, Recorded in Town Book. 



County, 



Town of — ./ ss> 

I do hereby certify that the foregoing are true copies of entries of 
votes for raising money made since the last meeting of the board of 
supervisors, and recorded in the town book. 

Witness my hand this dav of , A.D. 18 — . 

" W. L., Town Clerk of said Town. 

(3) Form of Certificate of Town Clerk to copies of Papers and Records. 
County, ~) 



Town of ,/ ss * 

I. J. M., town clerk of said town of , do hereby certify that 

the foregoing [or within] is a true and correct copy of the original 
thereof on file in my office [or is a true and correct transcript from 
the original book of records of said town, wherein is contained the 
entry or lecord of all such matters]. 

In witness whereof I have hereunto set my hand and seal this 

dav of , A.D. 13—. 

J. M., Town Clerk. [seat..] 



84 



TOWNSHIP ORGANIZATION ACT. 



[dk. 



ARTICLE XIII. 



THE BOARD OF TOWN AUDITORS. 



Officers com- 
posing board 
of auditors. 



In case of 
absence. 



Time and place 
of meeting. 



Examine 
accounts. 



Audit 
accounts. 



Section 1. In each town the supervisor, town clerk and jus- 
tices of the peace of the town shall constitute a board of audi- 
tors ; said board shall consist of no less than three persons, 
and each person shall cast but one vote.(l) 

Sec. 2. In case of the absence of any or either of the said 
officers, or their failure to attend any meeting of the board, 
those attending may associate with them the collector or asses- 
sor of the town, or both, in the place of any absentee or ab- 
sentees, as the case may be, who shall act for the time being 
as members of such board. (2) 

Sec. 3. Said board of auditors shall meet at the town clerk's 
office for the purpose of examining and auditing the town ac- 
counts, semi-annually, on the Tuesday next preceding the annual 
meeting of the county board, and on the Tuesday next preced- 
ing the annual town meeting. 

Sec. 4. The board of auditors shall, at the same time and 
place as stated in section three, examine the accounts of the 
supervisor, overseer of the poor (where the town sustains its 
own poor) and the commissioners of highways of such town, for 
all moneys received and disbursed by them, and shall also ex- 
amine and audit all charges and claims against their town and 
the compensation of all town officers, except the compensation 
of supervisors for county services. (3) 



(1) Each justice of the peace of the toivnship is a member of the board of 
town auditors. The number of the justices -who shall be town auditors of a town is 
not limited ; but the law includes them all, -whatever may be the number allowed 
in the township. Opinion Att'y Gcn'l Edsall, Aug. 13, 1873. This is not intended 
to include police magistrates. 

Iflien all the officers forming the board of town auditors have met. a ma- 
jority of ihem may decide upon questions coming before them, and their certificate 
-will he valid, although the supervisor has refused to sign it. Onderdonk v. Supervi- 
sor, 1 Hill R., 195. 

(2) It toilJ be observed that any three of the officers named in the first section 
of this article may comprise the board of town auditors; thus if any three of these 
are present, there would seem to be no necessity for associating the collector or 
assessor. 

(3) Tlie auditors of town accounts may he compelled by mandamus to audit 
the amount allowed for damages by taking land for a highway, and to take such 
measures as the law has placed in their power to collect the money ; although the 
party may have a remedy by action against the town. Van VleU ex reh, etc., v. Wilson 
et al., 17 Wis. R., 687. Aiid they may be compelled by mandamus to perform any 
minlsterial dutv which the law imposes upon them. Carpenter ex re!., etc., v. Supervi- 
sors of Town of'BeloU. 20 Wis. R., 79. 

It is held (Supervisor* v. Ottawa. 12 111. R., 480) that the board of supervisors in such 
counties as have adopted township organization are required to provide for the sup- 
port of the paupers of the county, and that there is no foundation for a distinction 
between countv and town paupers. The section of this act. therefore, providing for 
the account of overseer of the poor, will not apply except in those counties where 
by special enactment the town support their own poor. 



ART. XIII.] BOARD OF TOWN" AUDITORS. .85 

. The accounts so audited, and those rejected, if any, Accounts 
shall be delivered, with the certificate of the auditors, or a ma-town clerk. 
jority of them, to the town clerk, to be by him kept on file for 
the inspection of any of the inhabitants of the town. They 
shall also be produced by the town clerk at the next annual 
meeting, and shall be there read by him. 

Sec. 6. The board of auditors may require any account Affidavit may 
presented to be verified by affidavit, setting forth that the be rec * uired - 
same is correct and just, and is unpaid, or, if any part thereof 
has been paid, setting forth how much.(l) 

Sec. 7. The board shall make a certificate, to be signed by Certificate of 
a majority of the said board, specifying the nature of the account * 
claim or demand, and to whom the amount is allowed, and 
shall cause such certificate to be delivered to the town clerk 
of said town, to be by him kept on file for the inspection of 
any of the inhabitants of said town ; and the aggregate Aggregate 
amount thereof shall be certified to the county clerk at the certified to 
same time and in the same manner as other amounts required count y clerk - 
to be raised for town purposes, which shall be levied and col- How collected, 
lected as other town taxes, except that in towns mentioned in 
section four (4), Article IV., of this act, the amount shall be 
certified to the county board, who shall include the same in 
their estimate of the town expenses. (2) 

(1) Form of Bill against Town and Affidavit of Correctness. 

Town of . 

To A. J. Dr. 
18 — . March 20. To services as supervisor, one day out of 
town in attending to prosecution of suit in favor of said town 

against C. D., pending in the county circuit court, $2.50 

A. J. 
State of Illinois, \ co 

County, / ss - 

A. J., being duly sworn, doth depose and say that the foregoing [or 
annexed] bill for two dollars and fifty cents by him rendered against 

the town of , in said county, for services rendered as therein 

stated, is correct and just and is unpaid. 

A. J. 
Subscribed and sworn to before me, this ") 

day of , A.D. 18— . [ 

J. D., Justice of the Peace. J 
Note. — Where any part of a bill has previously been allowed and paid, credit 
therefor should be given on the bill, and the fact stated in the affidavit. 

(2) Form of Certificate of Auditors allowing claims against a Town, with 

Nature of Demand, and to whom the Amount is allowed. 
■ County, \ 

Town of ,/ ss - 

We, the board of town auditors of the said town of , having 

duly met at the town clerk's office in said town, on the day 

of , 18 — , for the purpose of examining and auditing town 



86 



T0WXSHIP ORGANIZATION ACT. 



[DIV. 



Town charges. Sec. 8. The following shall be deemed town charges : 

Town officers. ' 1. The compensation of town officers for services rendered 

their respective towns. 
Expenses. 2. Contingent expenses necessarily incurred for the use and 

benefit of th town. 



accounts, there being present at said meeting the supervisor., town 
clerk and justices of the peace of the town [or as the case may be], 
and having examined all accounts presented, do hereby certify that 
the following is the nature of the claims or demands against said 
town presented and allowed at said meeting, showing to whom the 
several amounts are allowed, to wit : 

To A. B., commissioner of highways, for services ; 20 days 
necessarily employed, at $1.50 per day $30.00 

To C. D., supervisor, for services as such, 10 days in the 
town, at S1.50 per day, and 5 days out of town, at $2.50 per 
day $27.50 

To E. F., for amount in full for building a pound ;.... $50.00 

Total amount audited $107,50 

[Specifying particularly the nature of each claim or demand, and to 
whom the amounts are allowed.] That we have this day audited and 
allowed to the above named persons the several sums as above 
stated. 

All of which accounts so audited, together with those rejected, are 
herewith delivered to the town clerk. 

Witness our hands this day of , A.D. 18 — . 

H. W., Supervisor. 
S. H., Town Clerk. 

P* R ' I ^ us ^ ces °f tne Peace. 

Hie law makes no provision for recording the proceedings of meetings of the 
board of town auditors further than what may appear by their certificate of auditing 
accounts. It is therefore proper that such certificate should be reasonably full in 
details, showing that the board was duly convened, and that a competent number 
of the persons composing the board were present. 

Tlie certificate of town auditors is conclusive upon the board of supervisors; 
it is held in New York that they are precluded from going behind it to inquire as to 
the merits of the particular items allowed, but are bound to act upon the amount 
audited without modification ; and that a certificate of town auditors purporting in 
the body of it to have been made by " the board of auditors of the town of N. H " is 
sufficient, though the officers have merely signed their names without adding their 
official titles, and that it need not appear upon the face of the certificate that the 
auditors met at the proper time and place. It will suffice if in point of fact their 
meeting was regular in those respects. Onderdonk v. Queen's Co., 1 Hill E., 195. 

Form of Town Clerk's Certificate to County Clerk of aggregate amount of 

Town Accounts Audited. 
County, I 

Town of ,i ss * 

To the County Clerk of said County : 

I, A. B., town clerk of said town of , do hereby certify that 

the aggregate amount of accounts audited against said town by the 
board of town auditors thereof, at their meeting held at the town 

clerk's office on the day of , 18—, is dollars and 

— cents, as appears by the certificate of said board duly deliv- 
ered to me and remaining on file in my office. 

In witness whereof I have hereunto set my hand this day 

of , 18—. 

A. B., Town Clerk. 



ART. XIV.] BOARD OF HEALTH. 87 

3. The moneys authorized to be raised by the vote of a town Town purposes 
meeting lor any town purposes.(l) 

4. Every sum directed by law to be raised for any town other sums. 
purp 

Sec, 9. The moneys necessary to defray the town charges Jg$;f e on 
of each town shall be levied on the taxable property in such property of 

in the manner prescribed in the act for raising revenue wn * 
and other moneys for State and county purposes and 
expenses.(2) 

ARTICLE XIV. 
BOARD OF HEALTH. 

Section 1. The supervisors, assessor and town clerk of j^rdo? stitute 
every town shall constitute a board of health, and on the health, 
breaking out of any contagious disease in their town or imme- 
diate vicinity, they shall have power to make and enforce any £jJ2Ja r of 
rules and regulations tending to check the spreading of such 
disease within the limits of such town, as they may think 
proper ; and for this purpose they shall have power to shut up Ma y snut u p 
any house or place where any infected persons may be, and 
cause notices of warning to be put thereon, or remove such 
person to any pest house within the limits of said town, at the Pest house, 
expense of the party so moved, if he be of sufficient ability to 
pay, or otherwise, at the expense of said town : Provided, that Proviso, 
nothing in this section shall apply to any town, or any part 
thereof, lying within the corporate limits of any incorporated city or village 
city or village. (3) 

Sec. 2. The town clerk shall keep a full record of all the Eecord - 
doings of said board, and report the same to the annual meet- 
ing of such tow T n.(4) 

(1) The expense of building a town 7iou.se for holding town meetings, and for 
other town purposes, is a town charge. Toivn of Beaver Dam v. Frings, 17 Wis. E., 379 ; 
Kempton v. Stetson, 13 Mass. R., 271. 

(2) See Div-VTT. " Revenue," Sees. 121-127, post p. 245, 246. 

(3) A hoard of health has no poiver to take and occupy premises as a pest house 
without the owner's consent. Boom v. City of Utica, 2 Barb. R., 104. 

Where the inhabitants of a town are exposed to small-pox, held, in Vermont, that 
the authorities of the town, acting as aboard of health, may take measures for its 
prevention by inoculation, and the town may legally vote a tax to defray the 
expense. Hazen v. Strong, 2 Vt. R., 427, 

Powers conferred on a board of health should receive a liberal construction, for 
the advancement of the ends for which they are bestowed. Gregory v. New York, 40 
N.Y.E.,273. 

(4) The miles, regulations and all doings of the hoard of health should be 
reduced to writing. It is held in New York that parol evidence of the orders of the 
board of health is inadmissible. Their determinations are judicial, and must be in 
writing. Meeker v. Van Eansslaer, 15 Wend. R., 397. 



88 TOWNSHIP ORGANIZATION ACT. [DIV. I. 

compensation. Sec. 3. The members of said board shall be allowed for their 
time spent in the performance of their said duties each the 
sum of one dollar and fifty cents per day, which, together with 

How paid. all bills by them contracted, and all sums of money by them 
expended, shall be audited by the board of auditors of such 
town, and be paid in the same manner as other town expenses. 

ARTICLE XV. 

THE COMPENSATION OF TOWN OFFICERS. 

Compensation Section 1. The following town officers shall be entitled to 

oftownofficers * compensation at the following rates for each day necessarily 
devoted by them to the service of the town in the duties of 
their respective offices :(1) 

Fees of town 1. The town clerk and supervisor shall receive for their ser- 

cierk. vices two and a half dollars per day when attending to town 

business out of town ; one dollar and fifty cents for town busi- 

Proviso. ness in their town : Provided, that the town clerk shall 

receive fees, and not a per diem, for the following services : 
For serving notices of election upon town officers, as required 
by law, twenty-five cents each ; for filing any paper required 
by law to be filed in his office, ten cents each ; for posting up 
notices required by law, twenty-five cents each ; for recording 
any order or instrument of writing authorized by law, eight 
cents for each one hundred words ; for copying any record in 
his office and certifying to the same, eight cents for every one 
hundred words, to be paid by the person applying for the 
same ; for copying by-laws for posting or publication, eight 

Paid by town, cents for each one hundred words, to be paid by the town. 

Assessor. The town assessor shall receive for his services as assessor two 

and a half dollars per day. (2) 

Pound masters' 2. The pound master shall be allowed the following 
fees for his services, to wit : For taking into the pound and 

(1) Public officers take their offices with their burdens, as well as advantages, and 
services required of them by law, for -which no pay is specially provided, must be 
considered as compensated by the fees allowed for other services. Miami y. Blake, 
21 Ind. E., 32. 

But when the law requires the services of an individual in a special capacity, as 
secretary of a board of commissioners, or clerk of a town meeting, but makes no 
provision for his compensation, he is entitled to reasonable compensation. Territory 
X.lHorris, 1 Oregon E., 107. 

And this would apply to a moderator of a town meeting, who, in the absence of 
any express provision for pay, would be entitled to reasonable compensation, and 
this may be regulated by that allowed to other town officers for similar services, as 
that of town clerk for services as clerk of a town meeting. 

(2) A clerh, is not obliged to deliver a copy of a record in his office until his 
fees for making the same are paid. The People ex rel. v. Rockwell, 2 Scam. E., 3. 

Clerks have the right to insist on the payment of their fees where the service is 
rendered for individuals, at the time the service is performed. Tfie People v. Harlow, 
29 111. E., 43. 



iees. 



ART. XV.] ESTItAYS. 89 

discharging therefrom horses, asses, mules and neat cattle, ten 

cents each ; sheep or lambs, three cents each, and swine, large 

or small, five cents each. He may also be allowed to receive 

his reasonable charges for the keeping of such animals, and charge for 

the amount which he shall charge therefor may be regulated aSai! 

by the town meeting. 

3. The officers composing the board of appointment in case Town auditor's 

„ , it vi r»i it compensation. 

oi vacancy, when they shall meet tor that purpose, and the 
officers composing the board of town auditors, shall each be 
entitled to one dollar and fifty cents a day for their services. 

4. No justice of the peace or town officer shall be entitled No fee for 
to any fee or compensation from any individual elected or 
appointed to a town office for administering to him the oath 

of office. 

Sec. 2. "Whereas, the Constitution requires that the day of Emergency, 
holding the annual township meeting shall be uniform 
throughout the State ; and whereas, in the county of Cook 
the day of election, as fixed by law, is not the same as that in 
the majority of the counties in this State, and there is doubt 
whether any election can legally be held in such county for 
town officers, an emergency exists that this act shall take 
immediate effect : therefore, this act shall take effect and be 
in force from and after its passage. 

ESTRAYS. (1) 

Section 1. Horses, mules, asses, neat cattle, swine, sheep when animals 
or goats found straying at any time during the year in counties u^h estrays! 
where such animals are not allowed to run at large, or between 
the last day of October and the fifteenth day of April in other 
counties, the owner thereof being unknown, may be taken up 
as estrays. (2) 

Sec. 2. No person who is not a householder in the county Taker-up must 
where the estray is found shall take up such estray, and no 
person shall be allowed to take up any estray except upon or 
about his farm or place of residence. 

Sec. 3. No person taking up an estray shall use the same Advertise 
previous to advertising it ; but animals giving milk may be e ore using ' 
milked for their benefit. 

Sec. 4. Where several estrays are taken up by the same several estrays, 
person, they shall be included in the same notices and pro- 
ceedings. 

CH The sections here given, concerning estrays, is that portion of the act in regard 
to estrays which relates to the duties of town clerks. 
(2) See act concerning animals running at large, Div.IX., post. p. 372. 






T0WBT3HIP ORGANIZATION ACT. 



[dit. I. 



Xotice of 
taking tip to be 



notice shall 



township 

Duty of town 



Sec. 5 -. : :: :^kes np or has at amy time upon his 
inclose;! lands an estray shall, within five days thereai 
up notices in three of the most public places in the 

act in which the estray was taken up or found, giving the 
-nee of the taker-up, and a particular description of such 
:. color and marks, natural and artificial, as near 
as may be. and stating before what justice of the peace in 
such town or precinct, and at what time, not less than ten nor 
more than fifteen days from the time of posting such notice, 
he will apply to have the estray appraised. 

bc. 6. In c mder to wnshi j wganization. the taker- 

up shall also, within the same time, deliver a such 

notice to the town clerk of his town, who shall enter the same 
at large in a book to be kept for tl. e, to be known as 

the "Town Estray Book,' 3 Doting in said book the time when 
the notice is delivered to him.(l) 



(1) Form of Notice of taking up Estray by Householder. 

Z-7RAY NOTICE. 

Notice is hereby given that the subscriber, a householder in the 
county of . State of Illinois, who resides at [give locality of resi- 
dence with reasonable certainty], in the town of , iinty, 

did on the day of 



-, 18 — , take up, upon his farm [or at his 
place of residence], in said town. : e estray cow [or as the case may 
be], of the following description: [give particular description — age, 
color and marks, natural and artificial, as near as may be], and that the 

subscriber will, on the day of . IS — , at the hour of — 

o'clock, — M., apply toL.lL, Esq., a justice of the peace in said town 

of , at his office therein, to have the said estray appr. 

Dated this dav of — , 18—. 

A. B. 
mplete copy of the foregoing notice should be entered by the town clerk 
in the town estray book. 

The foUowing maybe the form of the town clerk's entry in the estray book, noting 
the time of delivery of estray notice : 

Form of Town QerVs entry in Estray Book, noting delivery of Estray 

Notice. 
The foregoing notice was delivered to me, C. D., town clerk of the 

town of , the dav of , 18 — . 

C. I . 
wd. Clerk. 

The foregoing form 
the entry of the estray notice 



P1V. I.] CANADA THISTLES. 91 

CANADA THISTLES. , ^m 2 ' 

Appboved 

Section 1. There may be appointed by the board of town M a * cu 15 ^ 8 ; 2 - 
auditors in counties under township organization, and by the commissioner 
county commissioners in counties not under township organi- of panada 

... r o thistles 

zation, for each township or election precinct, and by the city 
council of any city, or by the president and trustees of any 
town or village, as the case may be, some competent person, to 
be styled " Commissioner of Canada Thistles," who shall take 
the oath required of township or precinct officers, and shall 
hold his office for the term of three years, and until his succes- 
sor is appointed and qualified; and he shall receive for his 
compensation the sum of two dollars a day, for each full day compensation. 
necessarily spent in the performance of his duty, to be verified 
by affidavit. The board of appointment may, at any time, for 
good cause, remove the commissioner from office, and appoint 
his successor, to serve the remaining portion of his time. 

Sec. 2. The commissioner of Canada thistles shall diligently Duty of the 
inquire concerning the introduction and existence of Canada 
thistles in his township or precinct, and if any are found grow- 
ing therein he shall take charge of all such growing in the 
highway and on uninclosed lands, and take care that they do 
not go to seed, or otherwise spread ; and he shall carefully 
seek and learn, so far as practicable, the best methods for 
their destruction, and he shall persistently apply, in proper 
time, such remedy or treatment as he shall deem best calcu- 
lated to prevent their spread and to eradicate the same. 

Sec. 3. In case said thistles are found growing on inclosed commissioner 
lands, the commissioner shall advise with the owner, agent or owneVof land. 
occupant on their treatment, and if the said commissioner shall 
deem it necessary and expedient for him to fully control the 
same, he shall agree with the owner, agent or occupant on the 
boundaries of the tract so infected, which it is expedient for 
him to control, and he shall mark the same by stakes or by 
fence, if thought best ; and thereafter such infected tract, or so 
much as from time to time remains infected, shall be managed 
and controlled by the said commissioner, for the purpose of 
destroying the said thistles, and so long as it may be necessary 
to complete the work. In case the commissioner and the owner, In case of dis - 

1 r» i i i -it agreement. 

agent or occupant of the land cannot agree, as regards the 
propriety of the commissioner controlling such tract, or of the 
boundaries of the same, then the commissioner shall proceed to 
stake out or mark such boundaries as he deems proper, and file 
a copy of his decision with the town clerk, or in counties not 
under township organization with the county clerk. The 



92 



TOWNSHIP ORGANIZATION. 



[DIV. I. 



Appeal without 
bonds. 



Commissioner 
to eradicate 
thistles 



Commissioner 
to prosecute. 



Report of the 
commissioner. 



Contents of 
the report 



owner, agent or occupant of the land may, if lie feels aggrieved, 
appeal from such decision of the commissioner, without bonds, 
within twenty days, to the commissioners of highways of the 
town, or to the county commissioners, as the case may be, who 
shall proceed to view the same, and to hear the reasons for and 
against the decision of the commissioner ; and a majority of 
such board of appeal shall decide as to the propriety of taking 
possession of the tract alleged to be infected, and if they decide 
to take such possession, what shall constitute the boundaries of 
the same, and shall direct said commissioner to exterminate 
said thistles (which are hereby declared a public nuisance), 
without unnecessarily depriving the owner of the land of any 
legitimate use and enjoyment of the same.(l) 

Sec. 4. The commissioner shall apply the best know T n means 
and use the utmost diligence in eradicating the thistles ; but he 
shall not have power to expend in work or materials. more than 
one hundred dollars on any one infected tract, without the 
advice and consent, in writing, of the supervisor of the town, 
or of the county commissioners, as the case may be. 

Sec. 5. It shall be the duty of the commissioner to prose- 
cute or complain to the proper authorities of any person or 
corporation who may violate any law now existing, or which 
may hereafter be passed, on the subject of Canada thistles. 

Sec. 6. The commissioner shall, annually, before the first 
day of November, make a written report to the supervisor of 
the town, or to the county commissioners, as the case may be 
— which report shall be filed with the town clerk, or, in 
counties not under township organization, with the county 
clerk. The report made to the supervisor shall be publicly 
read at the annual town meeting. Said report shall state — 

First — Whether there are or not any Canada thistles grow- 
ing in the tow r n or precinct. 

Second- — If any are growing, where and how many, and 
when and how introduced. 



(1) Appeal from Decision of Commissioner of Canada Thistles. 
To I. B., I. J. and D. I., Commissioners of Highways of the Town of 

, in the County of [or County Commissioners, as tlie 

case may be~\. 
The undersigned, A. B., owner [or agent or occupant, as the case may 
be] of the hereinafter described premises, feeling himself aggrieved 
by the decision of the commissioner of Canada thistles, filed with the 

town clerk \_or with the county clerk, as the case may be~], on the 

day of , A.D. 18 — , does hereby appeal to and submit the mat- 
ter in controversy to your honorable body according to the statute 
in such cases made and provided. 

The grounds upon which this appeal is made are [here briefly state 
the grounds of appeal and description of land]. 
Dated this day of , A.D. 18—. 



p IV . I.] CANADA THISTLES. ^3 

Third — A detailed statement of his treatment of each in- 
fected tract, with eost and result. 

Fourth — He shall report such other matters as may be 
required of him by the board of town auditors, or by the 
county commissioners. 

'Fifth — He shall state his views on their further treatment, 
and make such suggestions and recommendations as he may 
deem proper and useful. 

And he shall also forward a copy of said report to the secre- 
tary of the State board of agriculture, who shall collate and 
report the same to the governor by the first day of December 
of each year.(l) 

Sec. 7. The board of town auditors, and the county com- Accounts of 
inissioners in counties not under township organization, shall comm ^ s | u 

,. , „ , . . r , ,-,°r. i . . Who shall 

audit the accounts ot the commissioner, both lor his services audit, 
and for the money expended or labor employed by him ; and 
they shall provide for their payment as they now do for other 
town or county expenses. 

Sec. 8. The boards of supervisors and county commissioners Appropriation 
may make appropriations from the county treasury to aid in by counUes - 
destroying the Canada thistle in any one or more towns or pre- 
cincts of the county ; and in case they deem it expedient, they 
may assume control over any one tract or of all the Canada 
thistles in the" county, and make such provision as they may 
deem necessary, and impose penalties, not exceeding one hun- 
dred dollars for each offense, for a violation of any provisions, 
by-laws or regulations made by them on this subject, to be 
sued for by the commissioner, in the name and for the use of 
the proper county, before any justice of the peace having juris- 
diction. Whenever the board of supervisors or county commis- 
sioners shall decide to assume control, and so long as they 
exercise it, their jurisdiction shall be superior to that of the 
commissioner. 

(1) Form of Report of the Commissioner of Canada Thistles. 

To A. B., Supervisor of the Town of ■ , in the County of 

[or to the County Commissioners, as the case may be']. 
The undersigned, commissioner of Canada thistles for the town of 

, said county, would report that said thistles are now growing in 

said town [or as the case may be], on the farm of J. D. [describe its loca- 
tion], and that the same were introduced about by ; that 

his treatment of each infected tract of land, with the cost and result, 
■ has been as follows [state particulars] : and that he believes said this- 
tles should be treated for another year in the same way, by which time 
they will probably be entirely eradicated. Said commissioner would 
suggest and recommend that, etc. C. D., 

Commissioner of Canada Thistles for the town of . 

Dated this clay of , A.D. 18—. 



94 



TOWXSHIP ORGANIZATION. 



[BIT. I. 



AMENDMENTS TO THE TOWNSHIP ORGANIZA- 
TION ACT. 

THE SUPERVISOR AND HIS DUTIES. 

AN ACT to amend section two of article (11) Eleven of an act entitled "An Act to 
Revise the Law in Relation to Township Organization," approved March -ith, 
1874. [Approved March 29, 1875. In force July 1, 1875.J 

[This act amends Section 2 of Article 11 of the Township Organization 
Act. See ante, p. 68. The change made in the section consists in the 
addition of a provision requiring the supervisor to make and file with the 
town clerk, a detailed statement of the financial affairs of the town. J 

That section (2) two, of article (II) eleven, of an act entitled 
an act to revise the law in relation to " Township* Organiza- 
tion," approved March 4, 1874, be amended to read as follows: 



Duty — Receive 
and pay out 
monies, except 
for highways 
and bridges. 



Statement—bal- 
ance from pre- 
decessor. 



Amount tax 
levied. 

Amount paid to 
Supervisor. 

Amount paid 
out. 



Outstanding in 
debtedness. 



Town Clerk to 
record. 

Copy posted. 



Neglect to com- 
ply-. 

Forfeiture. 



ARTICLE ELEVEN (11). 

Sec. 2. The supervisor of each town shall receive and pay 
out all moneys raised therein for defraying town charges, 
except those raised for the support of highways and bridges, 
and he shall, on or before the Tuesday next preceding the an- 
nual town meeting, prepare and file with the town clerk a full 
statement of the financial affairs of the town, showing first, 
the balance (if any) received by him from his predecessor in 
office, or from any other source ; second, the amount of tax 
levied the preceding year for the payment of town indebted-' 
ness and charges; third, the amount collected and paid over to 
him as supervisor; fourth, the amount paid out by him, and 
on what account, including any amount paid out on town 
indebtedness, specifying the nature and amount of such indebt- 
edness, and the amount paid thereon, how much on principal 
and how much on interest account ; fifth, the amount and kind 
of all outstanding indebtedness due and unpaid, and the amount 
and kind of indebtedness not yet due, and when the same will 
mature. It shall be the duty of the town clerk to record the 
same in the record book of the town as soon as filed, and post 
up a copy of the same at the place of holding the annual town 
meeting two days before the meeting is held; and he shall 
also read aloud such statement to the electors at such meeting. 
Any supervisor or town clerk who shall willfully neglect to 
comply with the provisions of this section, shall forfeit and pay 
to the town the sum of not less than fifty nor more than two 
hundred dollars, to be sued for and recovered by said town in 



BIV. I.] AMENDMENTS. 95 

Tporate name, and appropriated to repairs of highways 
and bridges therein." (1) 

10X OF TOWN OFFICERS IN INCORPORATED TOWNS AND 
CITIES. 

AX ACT to amend Section Seven of Article Seven of an act entitled "An act to 
Re the Law in Relation to Township Organization," approved and in force 
h uh, 1874. Approved and in force March <J, 1877. 

[This act amends See. 7. Art. 7, of the Township act. See ante p. 64, 
by adding a provision concerning the election of town officers, and can- 
- in towns which lie wholly within the limits of an incorpora- 
ted city, like the city of Chicago.] 

That section seven of article seven of an act entitled "An 
act to revise the law in relation to township organization," ap- 
proved and in force March 4th, 1874, be and the same is 
hereby amended so as to read as follows, to wit : 

Sec. 7. The town shall supply a suitable ballot-box or Baiiot-box. 
boxes to be kept and used in like manner as ballot-boxes in 
other elections. In incorporated towns, or incorporated vil- Towns and vil- 
lages, whose limits are co-extensive with the limits of a town ; 
or in any organized town where the number of voters at the last 

Form of Supervisor's Statement of Financial Affairs of the Town. 

A full statement of the financial affairs of the town of , in the 

county of , State of Illinois, as existing on this day of , 

IS—, prepared by C. D., supervisor of said town: 
1st. Amount of balance received from A B, predecessor in office 
of the present supervisor, on hand at close of last pre- 
ceding year $100 00 

Amount received from other sources as follows : 

Received from [state the sources and amount] 

2d. The amount of tax levied the preceding year for payment 

of town indebtedness and charges, is 500 00 

3d. The amount collected and paid over to the present 

supervisor is as follows, by the town collector, . . . $200 

By the county collector, 200 

Total amount 400 00 

4th. The amount paid out by C. D., present supervisor, and the 
account on which the same was paid, including amount 
paid on town indebtedness, the nature and amount 
thereof, showing how much on principal and how much 
on interest account, is as follows: 
Amount paid out on account of [state in detail the payments 

and on what account] 

5th. The amount and kind of all outstanding indebtedness of 
the town, due and unpaid, is as follows: 

Amount due on [state the same in detail] 

6th. The amount and kind of indebtedness not yet due, and 
time the same will mature, is as follows: [State the 

same in detail] 

C. D., Supervisor. 



96 TOWNSHIP ORGANIZATION. [DIV. I. 

preceding general election exceeded three hundred, the County 
toxe^andVoii- Board may require one or more additional ballot-boxes and 
ing places. places for the reception of votes to be provided, which places 
shall be selected with reference to the convenience of the elec- 
tors of the town, and shall designate at which of said polling 
places the Town Clerk shall act as Clerk of the election ; and 
such polling place, when so designated, shall be the place for 
transacting the miscellaneous business of the town. And 
when several places are so provided, the electors present shal 
choose from their number one Assistant Moderator and one 
e\Sor-cie^k d " Assistant Clerk, for each additional ballot-box, to receive the 
votes therein, who shall take the same oath and be subject to 
the same penalties as the Moderator and Clerk, and shall be 
closing polls— under the direction of the Moderator. At the closing of the 

^'riprG box. is - 

brought. polls all the said ballot-boxes shall be brought together at the 

polling place where the Town Clerk acts as Clerk of* the elec- 

Canvassing tion, and the votes shall be canvassed at the same time and in 
the same manner, and return thereof made the same as if all 
the votes had been cast in the same ballot-box. When there 
shall be more than one polling place designated in such towns, 

Place of gener- the general meeting for the transaction of business shall be 

ai meeting. ^gid at ^ t - me ^gp^-fter mentioned at the polling place where 
the Town Clerk acts as Clerk of the town election ; or, if there 
be no Town Clerk, then at such place as shall be designated 
by the County Clerk. And it shall be the duty of the Town 
Clerk, or if there be no Town Clerk, it shall be the duty of the 

clerk to post County Clerk to post up in three of the most public places in 
the town, a notice of each of the places in the town where the 
County Board have directed and required the election to be 
held : Provided, hozvever, That in towns which lie wholly 
within the limits of an incorporated city, the Common Council 
of such city shall divide each of such towns into election pre- 

Division into cincts, and designate the voting places in each precinct ; and 

precmcts. an y e i ec t or j n suc h towns shall be entitled to vote for town 
officers only in the precinct in which he may reside. The 

Judges of eiec- Common Council of such city shall also appoint three Judges of 
Election for each of such precincts, who may be the same per- 
sons as are appointed as Judges for an election for city officers 
held on the same day. Such Judges of Election may choose 

aerks of eiec- twQ Q\ eY ]^ s f Election for each precinct, and such Judges and 
Clerks shall take the oath of office now prescribed by the gen- 
eral election law of t e State. 

Ballots for town The ballots cast at such election for town officers shall be 

°c->arSe. ep deposited in a separate ballot-box, and shall be counted and 
canvassed by the Judges of election separately from any 



notice. 



DIV. I.] AMENDMENTS. 97 

other ballots that may be cast at any other election that may 
be held on the same day. Said Judges of Election shall separate poll 
cause to be kept a separate poll list which shall contain the 
names of all persons voting at such election for town officers, 
together with their residence. And immediately upon closing 
the polls they shall canvass the votes polled in the manner canvass of 
provided by the general election law of the State, and make a votes - 
written statement or certificate of the number of votes cast 
at such election for each person voted for, and the office for 
which such person received such votes, and shall, within forty- 
eight hours thereafter, cause such certificate and the poll list, 
together with the ballots cast at such election, to be separately 
sealed up and transmitted to the Clerk of the town. The £^ c * te - a , 

o • t • -i i a i /^i n in sealed up sent 

Supervisor, together with the Assessor and Collector, shall, to town clerk, 
within five days thereafter, meet and canvass said returns and who to canvass 
declare the result of said election. The town meetings to be returns ' 
held in such towns for the transaction of town business, as mTetin^nvlT* 
now provided by law, shall be held at two o'clock in the after- o'clock? 
noon of said day at such voting place in such town as the ducted. 
Common Council of such city may designate, at which meet- 
ing a Moderator shall be chosen to preside by the electors 
present, and the Town Clerk shall act as Clerk of said meet- 
ing, and shall keep a record of the proceedings thereof." 

TOWNSHIP ORGANIZATION WITHIN CITIES. 

AN ACT to authorize County Boards in Counties under Township Organization to 
organize certain territory situated therein as a Town. Approved May 23, 1877. 
In force July 1, 1877. 

[This act is amendatory to the act concerning county affairs, in counties 
under township organization. See post Div. IX, Sec. 57. Section two 
of this act is supposed to have reference to cities as situated by virtue of 
some special act.] 

Sec. 1. That the County Board, in any County under county board 
township organization, may provide that the territory em- may or s ania -'• 
braced within any city in such county shall be organized as a 
town: Provided, Such territory shall have a population of jSrasjS 
not less than three thousand. And provided, The City 
Council in such city shall by resolution request such action by Request of 
the County Board. dtycound. 

Sec. 2. The territory of any city now organized, within Territory, 
the limits of any County under township organization, and Deemed a town, 
not situated within any town, shall be deemed to be a town. 

Sec. 3. All town officers within any town organized as Election of 
aforesaid shall be elected at the annual charter election of ofilcers - 



98 TOWNSHIP ORGANIZATION. [dIY. I. 



General eiec- such city. Ail general elections held in such city and town 
tions. shall be held at the same voting places as the city elections, 

with judges and clerks appointed in like manner as for the 

city elections. 
Powers. Sec. 4. The powers vested in such towns shall be exercised 

by the City Council. 
officers united Sec. 5. The City Council in such city and town may by 

in same person. ordinance p royide that the officeg of City and Town Clerk 

shall be united in the same person ; that the election of high- 
way commissioners shall be discontinued; that the offices of 
Supervisor and Poormaster shall be separated and the Poor- 
master appointed by the City Council. 
May regulate Sec. 6. The City Council in such city and town may 
tices. er ° JUS "from time to time regulate the number of justices of the peace, 
police magistrates and constables to be elected within such city 
and town ; but the number elected to either of such offices 
shall not exceed the number allowed by law to other towns of 

Vacancies. like population. 

Sec. 7. Vacancies in any of the town offices within such 
city and town may be filled by the City Council. 



DIV. II.] ROADS AND BRIDGES. 



99 



DIVISION II. 
ROADS AND BRIDGES. 

AN ACT in regard to Roads and Bridges in Counties under Township Organization. 
Approved May 26. In force July 1, 1877. 

PUBLIC HIGHWAYS DEFINED. 

Sec. 1. All roads within this State, which have been laid Lairs 1S77 . 
out in pursuance of any law of this State, or of the late ter- Jdf p^igs* 

ritory of Illinois, or which have been established by dedication v Y — > 

or used for twenty years, and which have not been vacated Public nigh- 
in pursuance of law are hereby declared to be public high- ways de ned - 
ways.(l) 

LAW OF THE ROAD. 

Sec. 2. "Whenever any persons, traveling with any car- persons 
riages, shall meet on any turnpike road or public highway in meetm s- 
this State, the persons so meeting shall seasonably turn their 
carriages to the right of the center of the road, so as to permit Turn to the 
each carriage to pass without interfering or interrupting, under ng 
the penalty of five dollars for every neglect or offense, to be recov- Penalty. 
eredby the party injured: Provided, This section shall not be Proviso, 
construed to apply to any case, unless some injury to persons injury. 
or property shall occur by the driver of the carriage or wagon Proviso- injury, 
refusing to tarn to the right of the beaten track; nor shall it 
be construed to extend to a case where it is impracticable, from Nature of 
the nature of the ground, for the driver of the carriage or grouud ' 
wagon to turn to the right of the beaten track. (2) 

(1) Navigable rivers and public streams are public highways, and every per- 
son has an equal right to a reasonable use of them as such. Davis v. Window, 51 
Maine R., 264. 

(2) The law of the road requiring travelers meeting each other on the high- 
ways to turn to the right of the middle of the traveled part of the road, prescribes a 
general rule to avoid injuries, but does not undertake to define fully the duties of 
travelers under all possible circumstances. The statute will not justify a man who 
remains stubbornly and doggedly upon the right of the traveled part of the high- 
way, and thereby wantonly produces a collision, when a slight change of position 
would have prevented it. &McUey v. Dom, 7 Wis. R., 236. 

Nor does the law requiring travelers seasonably to drive to the right, apply where 
one vehicle is passing along' one street, and another is turning into it from across 
road. Lovejoy v. Dolan, 10 Cush. II., (Mass.) 495. 

The rule only applies to. and regulates the conduct of travelers as between them- 
selves. Where a fight vehicle can pass with safety to the left of a heavily loaded 
team, it is their duty to give way and leave the choice to the more unwieldly vehicle. 
Grier v. Sampson, 27 Penn. State R., 183. 

A. party having before him the whole road, free from obstructions, and 
having no notice of any carriage behind him in season to stop or change his course, 
is at liberty to travel oh any part of the road that he pleases. Foster v. Goddard, 40 
Maine R., 64. 



100 



ROADS AND BRIDGES. 



[DIV. II. 



Drunken 
driver. 



Safety of 
passengers. 



Owner forfeit 
five dollars. 



Sec. 3. No person owning any carriage, running or travel- 
ing upon any road in this State, for the conveyance of pas- 
sengers, shall employ, or continue in employment, any person 
to drive such carriage, who is addicted to drunkenness or the 
excessive use of spirituous liquors, and if any such owner shall 
violate the provisions of this section, after he shall have had 
notice and reasonable proof that such driver is addicted to 
drunkenness, he shall forfeit at the rate of five dollars per day 
for all the time during which he shall thereafter have kept 
such driver in his employment. 

Sec. 4. If any driver whilst actually employed in driving 
any such carriage, shall be guilty of intoxication to such a 
degree as to endanger the safety of the passengers in the car- 
riage, it shall be the duty of the owner of such carriage, on 
receiving written notice of the fact, signed by any one of said 
passengers, and certified by him on oath, for [th] with to dis- 
charge such driver from his employment; and every such 
owner who shall retain or have in his employ, within three 
months after the receipt of such notice any driver who shall 
have been so intoxicated, shall forfeit at the rate of five dollars 
per day for the time during which he shall keep any such 
driver in his employment after receiving such notice.(l) 

Sec. 5. No person driving any carriage upon any turnpike 
road or public highway in this State with or without passen- 
gers therein shall run his horses or carriage (or permit the 
same to run) upon any occasion, or for any purpose whatever; 
and every person who shall offend against the provisions of 
this section shall be deemed guilty of a misdemeanor, and on 
conviction thereof, shall be fined not exceeding ten dollars, or 



Drunken 
driver. 



Notice to 

owner. 

Oath. 

Discharge of 
driver. 



Forfeit five 
dollars. 



Running horses 
on public road. 



Misdemeanor. 
Fine $10. 



(1) Form of Notice to Owner of Carriage of Intoxication of Driver. 

To A. B ., 

Owner of carriage running from to , between and 

, in the County of : 

Sir — You are hereby notified that on the day of , 18 — ,C. 



D., the driver of such carriage, whilst actually employed in driving the 
same, was intoxicated to such a degree as to endanger the safety of the 
passengers in said carriage. 
Dated , the day of , 18—. E. F. 

State of Illinois, \ 

County S 

E. F., whose name is subscribed to the above notice, being duly sworn, 
deposes and says that he was one of the passengers in the above mentioned 
carriage, on said day of — — , 18 — , and he certifies that the facts 



set forth in the above notice are true. 

Subscribed and sworn to before me. this 

day of , 18—. 

G. H.,J. P 



■\ 



E. F. 



PIV. II.] LAW OF THE ROAD. 101 



imprisoned not exceeding sixty days, at the discretion of the 
court. 

Sec. 6. It shall not be lawful for the driver of any car- 
riage used for the purpose of conveying passengers for hire, 
to leave the horses attached thereto while passengers remain Teams hitched. 
therein without first making such horses fast with a sufficient 
halter, rope or chain, or by placing the lines in the hands of 
some other person, so as to prevent their running; and if any 
such driver shall offend against the provisions of this section, 
he shall forfeit the sum of twenty dollars, to be recovered by Forfeit $20. 
action, to be commenced within six months; and unless the Limitation. 
amount of such recovery be paid forthwith, execution shall be Execution, 
immediately issued therefor. 

Sec. 7. The owners of every carriage running upon any 
turnpike road or public highway, for the conveyance of pas- £j images 6 
sengers, shall be liable, jointly and severally, to the party in- Jointly and 
jured, in all cases, for all injuries and damages done by any 
person in the employment of such owners as a driver, while 
driving such carriage, to any person or to the property of any 
person; and that, whenever the act occasioning such injury 
or damage be willful, negligent or otherwise, in the same man- 
ner that such driver would be liable. Any driver of any Driver guilty 
mail stage coach or any other vehicle for the conveyance of Jf e J5JoJ e " 
passengers, willfully offending against the provisions of this 
act, shall be deemed guilty of a misdemeanor, and on convic- i mpr i SO nment 
tion thereof, shall be imprisoned not exceeding four months, —Fine $300. 
or fined not exceeding three hundred dollars. 

Sec. 8. The term "carriage," as used in this act, shall be carriage de- 
construed to include stage coaches, wagons, carts, sleighs, fined - 
sleds and every other carriage or vehicle used for the trans- 
portation of passengers and goods, or either of them. 

Sec. 9. Nothing contained in this act shall interfere with Restriction. 
or affect any law concerning hackney coaches or carriages in 
any of the cities of this State, nor interfere with nor affect the Not t0 affect 
laws or ordinances of any such city for the licensing or regu- ordinances. 
lating such coaches or carriages. Justices of the Peace shall 
have jurisdiction in all cases arising under this act, where the jurisdiction. 
penalty does not exceed their jurisdiction. 

duties of commissioners of highways. 

Sec. 10. The Commissioners of Highways in the several commission- 
towns of this State shall have the care and superintendence highways and 

bridges." 



102 ROADS AND BRIDGES. [dIV. II. 

of highways and bridges therein, and it shall be their duty — 

(!) 

First, To keep the roads and bridges in their respective Keep roads and 

towns in repair, and to cause the building of bridges when the Repair. 3 m 
public interest or necessity may require it. (2) 

(1) TJie construction of roads and bridges, under our system, is for the most 
part accomplished through our township organization ; the counties contributing 
towards the construction of bridges, in cases where the expense would be too oner- 
ous to be wholly borne by the towns in which they are situated. The statute, in 
express terms, gives to commissioners of highways, when elected, the care and su- 
perintendence of the highways and bridges of the* town, and confers upon them all 
powers requisite for the execution of their trust. They are not directly responsible 
to the town, but are themselves a species of quasi corporation, with powertosueand 
be sued, having legal succession and deriving their authority, nottnrough the town, 
but directly from the statute. The towns have no power to give the slightest direc- 
tion or instruction to these officers as to the performance of their duties. Commis- 
sioners ofNUes v. Martin, 4, Mich. R., 557. Commissioners, etc., v. Baumgarten, 41 111. 
E.. 231. 

Towns have tint the potcer, at town meeting, to direct the commissioners to 
remove a fence from a highway. Gray etalx. Waterman. 40 111. R., 523. The duty 
of the commissioners in this regard is prescribed by the statute, which they are 
bound to observe, ^ee pod Sec 78. 

Commissioners of highwags cannot, bg virtue of their office bring suits 
to recover damages against individuals or corporations for illegally entering upon 
and taking possession of the public highways or bridges of their town. Neither 
have the electors of a town, at a town meeting, power, by resolution or otherwise, to 
authorize such commissioners to bring an action in their own names, or in their 
name of office, for such injuries. Such a resolution, if passed at town meeting, 
Avould not bind the town. Thus, where the electors of a town, at town meeting, 
directed the commissioners of highways to prosecute a turnpike company for en- 
tering upon and taking possession of a public highway and bridge in that town. 
and the commissioners accordingly brought a suit for the cause of action in their 
names as commissioners, and had judgment against them. Held, that they could 
not sustain an action against the town to be reimbursed their co^ts and expenses, 
or the costs recovered against them in that suit. The electors of a town cannot bind 
the town, except in manner prescribed by law. Cornell v. Guilford, 1 Denio R., 510. 
See ante, Div.I. Art. 4, Sec. 2, and note. 

Where commissioners of higJuvags mafce themselves parties to a proceed- 
ing to reverse a decision of the supervisors, by writ of certiorari, and are unsuccess- 
ful, a judgment against them for cost is proper. If they were acting in behalf of the 
town, they should have appeared in its name and not their own. Commissioners, 
etc.. ojSonora v. Supervisors of Carthage, etc., et al. 27 111. R.. 111. 

But in awarding a peremptory writ of mandamus to compel the commissioners to 
lav out a road which had been ordered on appeal to supervisors, ft is error to render 
judgment for cost against them. Costs in such case should be awarded against 
the town. Commissioners' of Highway* v. The People ex rel., 38 111. R., 347. 

Commissioners of highicaijs, though not expressl / authorised by statute, 
have the power to sue when necessary to the performance of their duty. This 
would seem to follow from the nature of their office Overseers v. Oversers. 18 
Johns R., 407; ICowen R.. 260, 3 Wend. R.. 183 ; 7 Id., 131 ; 19 Id., 50. In New York 
it is held, they cannot maintain an action in their official title alone ; they must 
sue in their individual names, adding their official title, as A., B. and C, "commis- 
sioners of highways of town of ." 4 Hill, 136 ; 5 Id.. 215 ; Denio R., 510. And 

commissioners who advance their own money to pay the claim of an attorney for 
such services, and take an assignment of the claim, mav recover the amount from 
the town. Dantz v. Dante, 44 Barb. R.. 439. 

(2) T/ie construction and improvement of public roads tends to mark dis- 
tinctly the progress of society. This is a subject which has claimed the attention of 
all prosperous and well regulated communities in all ages of the world. In Eng- 
land, every parish is bound of common right to keep the high roads that pass 
through them in good and sufficient repair ; unless by reason of the tenure of lands, 
or otherwise, this care is consigned to some particular private person. From this 
burthen no man was exempt by the ancient laws of that country, whatever other 
immunities he might enjoy ; this being a part of the three burdens to which every 
man's estate was subject. For the most part the care of roads, only, seems to be left 
to parishes, that of bridges devolving rnostlj- upon counties at large". By Stat 22 Hen. 
VIII. chap. 5, if the parish neglected those repairs, they might, formerly, as now, 
be indicted for such neglect ; but it was not then incumbent on anv "particular 
officer to call the parish together and set them upon this work : for which reason, by 
the Stat. 2 and 3 Ph. and M., chap. 8. surveyors of highways were ordered to be 
chosen in every parish. £ee 1 Black. Com., 3oS. Like officers in the United States 
are designated by different appellations, as surveyors, commissioners, overseers, 
supervisors, etc. 



DIY. II.] COMMISSIONERS OF HIGHWAYS. 103 

ConoertUttg the duties of commissioners of highways in keeping 1 roads in 

repair, ( hanceUor Kent says : This seems to be a general duty, applicable at all 
times and in all places, yet when we come to read the details Of their duty, we per- 
eeive it does not exist absolutely, but arises only when the commissioners have 
money in hand from forfeitures and penalties, or which have been paid over to 
them under the direction of the supervisors. BarUeU v. Crosier, 17 Johns, 452. See 
also to the same effect, Garlinghousc v. Jacobs, 29 X. Y. R. (2 Tiffany), 297, Davis, J., 
dissenting. When commissioners have not sufficient funds for all purposes; they 
may exercise discretion as to which of the bridges in the town they will undertake 
to repair. They will be presumed to have exercised that discretion in good faith, 
and cannot be made responsible, in a civil action, for its exercise. Garlinghousev. 
29 N. Y. R. (2 Tiffany I, 297. They have power to buy, at the expense of the 
town, all necessary timber* etc., for repairing roads and bridges within their juris- 
diction. Welts v. Qoffstown, 16 N. Y. R., 53. See jwst Sec. 81, par. Second. 

The powers of commissioners of highways are co-extensive with the terri- 
tory included in the public way, and they may work and improve every part and 
parcel of it at pleasure, being only responsible for a wanton or malicious injury to 
the rights of the adjacent owners. In villages or other thickly settled portions, 
where their powers are not superseded by acts of incorporation, or otherwise 
abridged, they may make reasonable and suitable provisions for walks or passways 
for foot passengers at the sides of the streets or highways. Graves & Whitev. Ctis and 
Others, 2 Hill. R., 466. 

Labor assessed for highway purposes can only be bestowed upon such roads 
as are established by law. When lands are dedicated by the owner to public use as 
streets, they do not become public highways until accepted. as such by the public 
authorities. Oswego v. Osxvego Canal Co., 2 Selden R., 263. 

A highway overseer has no authority to expend money committed to him for the 
repair of highways in changing the'line of travel, and constructing a new road. 
Todd v. Rowley. 8 Allen R. (Mass.), 51. But this probably does not apply to the case 
of a slight departure from the established road from necessity to avoid a formidable 
obstruction. 

It is a question whether, after a road has been laid out, it maybe abandoned by 
mere non-user, so as to relieve the town authorities from the duty of keeping it in 
repair. When a road is used to any extent, although it may be obstructed by mov- 
able bars across it, it will not be considered as abandoned. State v. Alstead, 18 N. H. 
Rep., 59. 

Towns are not liable to a private action for damages occasioned by the neg- 
lect of thejtown authorities to keep their public highways in order, either by the 
common law or under 'any stature of Illinois; in respect to that character of liabil- 
ity, there is o difference between the authorities of counties, and their powers and 
duties in regard to public highways, and towns established by law as civil divisions 
of counties, merely, and the doctrine of the case of Hedges v. The County of Madison, 
1 Gilin., 567, declaring that counties are not liable to such private actions, applies to 
towns of that description. Town of Wultham v. Kemper, 55 111. R., 346. 

Concerning Bridges —It is the duty of a town to build bridges over streams 
within its limits. This being so, the town will be responsible if they make such a 
structure as will obstruct the free navigation of the stream. Town of Harlem v. 
Emmert, 41 111. R., 320. But the right of a town to build a bridge over a river is co- 
extensive with the right to navigate it, and a bridge constructed on the most ap- 
proved plan, at the proper place, and with sufficient channel between the piers, 
over any of our navigable water-, cannot be held to be a material obstruction to 
the navigation, if it appear, that in ordinary times, with ordinary wind and water, 
the draw can be safely passed, and that no better structure could be erected for the 
purpose designed, with the amount of outlay demanded for such undertaking. 
There is no restriction in the ordinance of 1787, if it still be in force, on the power 
of the State to use the most approved artificial means for crossing navigable waters 
within the State ; it only prohibits their obstruction, and the imposition of any tax 
or duty on their navigation. III. R. Packet Co. v. Peoria Bridge Association, 38 111. R., 
468. 

The fact that a town has expended money and labor on a road, andineluded it in 
the rate bills of the highway surveyors, as a public road on which highway taxes 
are to be expended, and has left it open for public travel, and all as a common high- 
way, tends to prove that the town has adopted it as a highway, therefore a bridge 
on "said highway, necessary to connect the portions of it on each side of the bridge, 
was also adopted. Folsom v. Underbill, 36 Vt. R., 580. 

Municipal corporations, which are those known as cities and villages, 
where their charters provide ample means for keeping their streets, bridges and side- 
walks in repair, are obliged to do so: and are liable for damages resulting in case 
of neglect. DavenportY. Ruckman, 10 Boswell R. (N. Y.), 20 Browning v. City of 
Springfield, 17 111. R„ 143; City of Joliet v. Yerley, 35 Ill.R., 58. 

J fa, city authorized to construct a highway in a particular manner, but 
does it in a different one, it will be answerable in' damages to a party sustaining in- 
jury upon it, as much as though it had not exceeded or deviated from its authori- 
ty. It will be liable for the act of its officers. City of Pekin v. Newell, 26. 111. R., 320. 

A city is not liable for damages resulting from the proper exerci e of authority in 
permitting railroad tracks to be laid in the streets, or in raising the grade of streets. 
Murphy v. City of Chicago, 29 111. R., 279. 

The fact that a village road has nut been repaired by the corporate authori- 



104 ROADS AND BRIDGES. [DIV. II. 



roads. 



be recorded. 



Lay out, estab- Second, To Jay out and establish roads, to regulate the 
Lte roads already laid out, and to alter or vacate such roads as 
they or a majority of them shall deem proper as hereinbefore 
provided. (1) 

cause roads to Third, To cause such roads used as highways as have been 
laid out or dedicated to public use but not sufficiently describ- 
ed, and such as have been used for twenty years, but not re- 
ties, may be evidence tending to show that the corporation does not regard it as a 
highway. This will not be the case, however, if it appears that, from the nature of 
the ground, the road had needed no repairs. Town of Lewision v. Proctor, 2. 111. R., 
414. 

Cities and towns may acquire the title to streets by conveyance, dedica- 
tion, prescription, or by a record of the town plat. But the ground for streets should 
be properly indicated on the town plats, and other requisitions of the statute should 
be complied with, to enable the city or town, and others, to enforce the opening of 
such streets. City of BcllvUle et al. v. Stookey, 23 m. R., 441. 

(1) A town cannot py vote, authorize or compel the commissioners of high- 
ways to lay out. alter or vacate a particular town way or public road ; their duty 
being expressly pointed out by law, and they can only act in obedience to its pro- 
visions. Eeen'x. Stetson, 5 Pick. R., 492. For duty of commissioners in this respect, 
see post, Sec. 28. 

The survey and plat of a public road is evidence of its location, but is not 
conclusive ; but like the field notes of the government surveys, parol evidence may 
be rece.ved to show that the road was actually located differently from the calls in 
the survey of the road. Hiner v. The People, 34 111. R., 297. 

Parol evidence is admissible to shove the existence of a public road. Brown 
v. Jefferson, 16 Iowa R., 339. As well as its location. Eyman v. The People, 1 Gilm. R., 
4; Nealy v. Brown, Id., 10. 

The inference from evidence tending to show that a way over a man's land is a 
public road may be rebutted by evidence of non-user for more than twenty years. 
Burgwyn v. Lockhart, 1 Wins. R. (N. C.) No. 1,269. 

Jfliere the public have ceased to travel a road, and have acquired another 
which accomodates public travel, an abandonment of the first road may be pre- 
sumed. Grube v. Nichols, 36 111. R., 93. 

Where ground upon which a highway was laid ou*. or which was dedicated 
for that purpose, has been in the open and exclusive adverse possession of the 
owner of the land for twenty years, and a complete non-user of the easement by the 
public during that time, an 'extinguishment will be presumed. City of Peoria v. 
Johnston, 56 111. R., 45. 

A road, to which the public can have no access by a highway, cannot in 
the nature of things be public, and at most, would serye only the purpose of private 
convenience. State v. Price, 27 Md. R., 449. 

It is an unsettled question in New York whether a road open at one end only, that 
is where but one end connects with a highway— technically termed a cul de sac— is 
a public highway, h'ickok v. PMtsburgh. 41 Barb. R. (N. Y.), 130. But held in Mary- 
land, where commissioners had authority to lay out a road if, in their opinion, it 
would conduce to the advantage and convenience of the public, a road laid out by 
them would be a public road, even if it did not connect with another highway. 
State v. Pi-ice. 21 Md. R., 449. 

The supreme court of Illinois sustained a highway which the record showed to 
be a cul de sac. Commissioners of Highways of Lyons v. The People ex re!., 38 111. R., 347. 

lhe title of the owner of land bounding upon a highway is presumed to ex- 
tend to the center of the way. Bice v. Worcester, 17 Gray R. (Mass.),283. But this 
will be rebutted by a deed s'howing to the contrary. Smith v. Slocum, 11 Gray R. 
(Mass.), 280. 

Plank roads are undoubtedly public highways, and different from common 
highways in the mode of construction, and the taking of tolls, and on the payment 
of the latter, travelers have the same right to use them as they have to use other 
highways. And where the company forfeit their charter, or abandon it. or suffer 
the road to so become out of repair so as to amount to an abandonment, the right of 
way of the cornpanv ceases, and the road becomes a common highway. Craig v. 
The People ex rel., 47*111. R.. 488. 

The common law writ of certiorari is the proper mode of proceeding where 
it is sought to question the jurisdiction of commissioners of highways, and regular- 
ity of their proceedings in laving out and establishing a highway. Commissioners 
. Harper, 38 111. R., 104. And it lies to bring up the record of proceedings gin laying 
out a road by supervisors on appeal. Town of Winfield v. Moffatt et al., 42 111. R., 47. 



DIV. TT.] COMMISSIONERS OF HIGHWAYS. 10'") 

corded, to be ascertained, described and entered of record in 
the Town Clerk's office. (1) 

■in of Order of Commissioners of Highways for ascertaining a road 
imperfectly described or not recorded. 

County, 



Town of 

Whereas, a road leading: from [northward to' the road], in 

said town of , and now used as a highway, was laid out by the 

commissioners of highways of said town, on the day of — — , A. D. 

18 — , [or, by authority of the County or County Commissioners 1 
Court, as the case may be,] but which is not sufficiently described [or, has 
indicated to public use ; or, has been used for twenty years for such 
highway, but not recorded]. 

Now, therefore, we, the undersigned, commissioners of highways for 

the said town of , do order that said road be ascertained, described 

and entered of record in the clerk's office of said town, according to a 
survey which has been made under our direction, as follows [here insert 
the surrey]. And we do further order that the line of said survey be the 

center of said road and that the same be of the width of feet. 

Given under our hands this day of , A. D., 18 — . 

N. W., ) Commissioners 
0. S., [ of 

W. H., ) Highways. 

Tinder authority to re-survey roads, given in the above provision, the com- 
missioners proceed'on their own motion, without petition. The object of the law 
seems to be to make a more perfect record of such roads, and thereby settle contro- 
versies that may arise. 

Jn the order or' the Commissioners ascertaining a road not sufficiently des- 
cril ted, a statement as to the width, whilst it cannot operate to change the facts", may 
be proper as showing the conclusions of the commissioners from examination of the 
premises, and the evidences coming to their attention in regard to the width. 

7 he act authorftsi g commissioners of highways to ascertain, describe and 
enter of record, roads used as pub. ic highways for twenty years, confers no author- 
ity upon them to adjudge what was originally intended in relation to the width or 
location of the road, any further than such intention is manifested by actual user, 
and they cannot increase the width of the road or change its location. If the com- 
missioners in such cases, encroach upon lands which do not belong to the highway 
as it had been actually opened and used, the owner thereof cannot take his remedy 
by appeal, as in other cases, but must seek it in some other form. The People v. 
Judge*, etc., 21 Wend. R., 491 ; Talmagev. Hunting, 29 N. Y. Rep. (2 Tiffany), 447; 
Bumpersv. Miller, 4 Mich. R., 161. 

It is held in New York, where the statute requires public roads to belaid out four 
rods wide, that when laid out under the statute they are deemed to be that width ; 
yet where they are claimed not as being laid out under the statute, but by reason 
of a user for twenty years or more, they may be less than four rods wide, ifar- 
hin v. Harridan. 6 Cowen R., 189. 

The ii 'i interrupted use of land as a highway, for twenty years time, con- 
stitutes it a public highway, without regard to the intention of the owners. Deven- 
peck v. Lambert, 44 Barb. R., 596. 

Where one lias permitted the public to use a road across his land for twenty years, 
but during that time has kept a gate at each end of the road, the right acquired by 
the public is a qualified prescription, and the commissioners of roads will be 
enjoined from removing the gates. Green v. Bethen, 30 Ga. R., 89R. 

//*. determining the location of a road, the testimony of one who was both 
viewer and surveyor, and of all others most capable of testifying to the fact, should 
be received. Morrow v. Commonwealth, 48 Penn. State R., 305. 

There are several modes of acquiring a highway, 1. By condemnation, so 
called. 2. By dedication. 3. By prescription. Highwavs are also allowed by neces- 
sity. Daniels v. The People, 21 111. R., 139. Gmbe v. Nichols, 36 111. R., 92. 

J. Condemnation is the ordinary mode of acquiring a highway pre- 
scribed by the statute, by petition to the commissioners, an examination and sur- 
vey of the route, and a declaration of establishment, if it is found necessary for the 
public interest. The right is given to take the land of individuals by awarding 
compensation, which is called condemnation. See post, Sec. 28. 

'J. Dedication, is the act of donation, or apprfijiriation of land by the 
owner for the use of the public generally, as a common way ; and an acceptance, on 
the part of /lie public, of the land so appropriated. Bouv. Law Dict. title "High- 
way." Gentleman v. Soule. 32 111. R.. 272. 



106 ROADS AND BRIDGES. [DIV. II. 

To make the dedication complete, it is essential that there should be an 

acceptance on the part of the public, as well as a donation on the part of the indi- 
vidual. Although the owner may declare land dedicated to the public for a high- 
way by fencing it out in that form, or by other evidence of dedication, vet if it be 
not accepted by the public, it will be no dedication, and he mav resume the land at 
any time. Becker v. S£ Charles, 37 Mo. It., 13. But if after such act of dedication 
by the owner, it is accepted by the public, he cannot change his purpose and resume 
the grant. Proctor v. Town of Lewistovm, 25 111. B.. 153. 

To effect a dedication, there must be an intent so to do on the part of the 
owner. Rees v. City o£ Chicago, 38 111. R., 323. C, B. and Q. R. R. Co. v. Bunker, 44 111. 
B., 28. and authorities cited; and this intention must be unequivocal and free from 
doubt by acts inconsistent with the intention to dedicate. Tallmadge v. East River 
Bank, 26 N. Y. Bep. (12 Smith), 105. Lownsdale v. Portland, 1 Oregon B., 397 Kellv v 
City of Chicago, 48 111. B., 388. 

The vital principle of dedication is the intention to dedicate. Harding v. Town of 
Hale, 61 111. R., 192. y ■* 

The dedication or intention may be manifested in writing; bv declaration or by acts 
of the owner. Gentleman v. Soule, 32 111. B., 272. Or it may be inferred from long 
and unintermpted user bv the public with the knowledge and consent of the owner. 
Mclntyr. v. Storey, 8U 111. B., 127. 

The intention must be signified by something more than symbols of uncertain im- 
port, by which it has pleased a draftsman to decorate a plan of property. David v. 
New Orleans, 16 La. An. B., 404. 

Declarations of the owner, made after the alleged dedication, may be received as 
evidence of intention. Proctor v. Town of L-.wistown, 25 111. B., 153. Chopin v. State, 
24 Conn. B.. 236. 

Dedication may be proved against the owner by his express declaration. 
whether by deed or by parol, or by any act unequivocally evincing his intention to 
dedicate, a's by his opening a way'for the public over his land, or it may be implied 
from his acquiescence in the use of his land, for a public way. Angell on high- 
ways, C. 3 ; 3 Kent Com., 451. Case v. Favier, 12 Minn. B., s'j ; Wilder v. City of St. Paul, 
12 id., 89. 

The acceptance of a dedication is usually manifested by acts, such a staking 
charge of, and repairing the highway by the proper county or town authorities. 
Gentleman v. Soule, 32 111. B., 272; Rces'v. City of Chicago, 38 111. R., 323; and it may 
be shown by the actual use by the public. Alvord v. Ashley, 17 111. B., 363 ; Dimon v. 
The People, 17 111. B., 416: Marcy v. Taylor, 19 id., 634; Daniels v. The People, 21 id., 
442 ; or bv vote of the town in appropriating money for repairs. State v. Atherton, 16 
N. H. Bep., 203. 

A town could probably accept a dedication by laying out a highway over the pre- 
mises dedicated on petition, as in other cases of laying out highways. 

A r o particular length of time is necessary for evidence of dedication. 
Marcy v. Taylor, 19 111. B., 634. Rees v. City of Chicago, 58 id., 323. 

Dedication may be proved like any other fact. Rees V. City of Chicago, 38 id., 
323. But the evidence must be positive and certain. Lownsdale v. Portland, 1 Oregon 
B., 397. 

The dedication is a mixed question of lair and fact: and the circumstances 
of the case with reference to the dedication, and the quantity of land taken should 
be left to the jury. Alvord v. Ashley, 37 111. B., 369. Waugh v. Leech, 28 id., 489. 

A straight line drawn through the centre of a Virginia fence, which has been con- 
tinued for more than twenty years fronting on a highway, the boundaries of which 
cannot be otherwise ascertained, is to be deemed the true boundary, and there is no 
presumption that the land inclosed between that and the angles of the fence next 
the highway was not intended to be dedicated to public use. Holb. oak v. McBi ide, 4 
Gray B. (Mass.), 215. 

A dedication is not vitiated because if may have been effected by the pay- 
ment of money. Rees v. City of Chicago, 38 111. B., 323. But a dedication on condi- 
tion is void if the condition is not complied with. Lownsdale v. Portland, 1 Oregon 
B., 381. 

The soil of a road dedicated to the public belongs to the original owner, and re- 
verts to him w r hen it ceases to be applied to a public purpose. Mendcz v. Dugart, 17 
La. An. B., 171. 

A party will be estopped from denying a dedication which has received his 
grantor's acquiescence: Rees v. City of Chicago, 38 111. B., 323; or which he has ac- 
quiesced in by a partition of lands in which he is interested. McGregor v. Reynolds, 
19 Iowa B., 397. 

To constitute a highway by dedication, the passage way should be a thoroughfare 
and not a court closed at the end as a means of access'to the property of private 
persons, but a means of passage for the w^hole community from one public place to 
another. Holdane v. Trustees of Cold Spring, 23 Barb. B., 103. 

A. highway acquired by dedication is like any other highway, and cannot 
be altered or changed at the will of the owner of the land over which it passes. 
Holesoft v. King, 25 Ind. B., 352. 

A road may exist par' by dedication and part by record, and if the owner of 
land dedicated a portion of the road in use in exchange for a portion of a way laid 
out, the portion so dedicated would be a valid road. Town of Havana v. Biggs, 58 111. 
R., 483. 

The mere act of working, repairing or traveling on a road, with the knowl- 



DIV. II.] COMMISSIONERS OF HIGHWAYS. 107 

edce and assent of the owner, does not constitute it a highway. Harding v. Town 
qfHale, 61 111. R..192. 

Bui long hoot by the public connected with such acts of acceptance and ac- 
quiescence Of the owner tend to show a dedication. Iliner v. Jcanptrl, 65 111. R., 428. 

The acknowiedging and recording of a town ]>lat, is the highest evidence 
Of the dedication of the streets and alleys marked upon it, and until the town 
becomes incorporated, the streets are under control ui the county or town authori- 
ties. The streets as platted canno; be enlarged or diminished, but die highway 
authorities may dirtct how much of a street shall be worked upon or impioved. 
•led Cited by a plat, unle s law ully reclaimed by t e person wno ua plat- 
ted, will forever remain to the use of the puolic. Waugh, suing, ttc, v. Leech, 28 111. 

The plat of an addii ion to a town, although not acknoivUdged and recorded, 
- as a dedication of the stre.ts, but not as a conveyance of the lee of the 
streets to the corpora - ion. Ba>t,ks v. Ogden, 2 Wallace R. (U. S.), 57. 

A river, though not navigalde in all its parts, may be dedicated as a high- 
way by the proprietors of land along its banks, in the same manner as a highway 
may be dedicated upon dry land. Yates v. Judd, 18 Wis. R., 118. 

3. Prescription is the mode of acquiring a highway by long continued 
u.se. The uninterrupted usa of land by the public for a highway, lor the period of 
ears, is sufficient to es.ablish the e >istenee o a highway. Green v. Oakes, 17 
LI. R.. 249; Bank!.? v. The People. 21 111. R., 439; Alvord v. Ashley, 17 id., 363. And 
th sright continues untii it is clearly and unmistakably abandoned. A partial devi- 
ation is not an abandonment. Town of Lewistownv. Proctor, 27 111. R., 414. After 
twenty years user by he public the law presumes a grant of the right by the owner. 
Grubev. Nichols, 36 ill. R.. 92. Or it may be presume) that such road was legally 
laid out. if such it is claimed. State v.* Boscawcn, 32 N. H. Rep., 331. The right of 
toe public will become complete without regard to ownership, whether, it be indi- 
vidual or governmental. Dimon v. The People 17 111. R.. 416. But when a road has 
not been used twenty wars, its legal existence may be disputed. Eamesx. Northum- 
l 44 N. H. R., 67. 

Twenty years is the shortest time within which the public can, acquire a 
; rive right to use a road. Nor can the time during which various >.nd distinct 
lines of travel have been used be so united as to make up the requisite time to * 

-h it prescrip'ive right to any given single line of road. In case of a high- 
w ay claimed by prescription, the travel may slightly deviate from the thread of a 
road which is being used, to avoid an obstruction, and still not ciange the road 
i self. iiUt it is otherwise where the whole length of the road is abaud ned for 
eight or nine years, and is not sufficiently traveled to prevent its being obstructed 
by the growth of weeds and brush. In such c?se there is not that continued user 
which is absolutely necessary to establish a prescriptive right. The public cannot 
acquire a prescriptive right to pass over a tract of land generally, but it must be 
confined to a specific line or way. Gentleman v. Soule, 32 111. R., 271. 

// a road is used and traveled by the public, as a highway, and is recog- 
nized and kept in repair es such by the prorer authorities, proof of these facts fur- 
legal presumption, liable to be rebutted, that a ;ch road is legally est iblish d 
as a public highway. It is not necessary, in the first instance, to produce ie ord 
evidence of the exi tence of a road; and parol evidence is admissible to show where 
is located. Eyman v. The People, 1 Gilm. R., 4. Nealy v. Brown, 1 Gilm. R., 10. 

It se-mi> that whether the highway is by us^r only or by the statute, it must be of 
the width prescribed by law, wo ere the dedication or donation is not expressly or 
impliedly restricted by "the owner : when not so restricted it is not confined to the 
mere track which is beaten by cairiases and the feet of animals, in passing aiong, 
l.ut includes and carries with it the width as provided by statute. Bumpers v. Mil- • 
' .. 4 Mich. R. 164. 

Where, through the apparent abandonment of a public way for an unreasonable 
time, private rights have accrued, the public are estopped. Opinion Attorney Gen- 
er 1 Berry (Minn.), vol. 1, p. 89. Parrish v. Stevens, 1 Oregon R., 59. 

The public Jiave no right, however, tinder the law of prescription, to use 
and occupy the soil of an hid vidual adjoining navigable waters, as a public land- 
ing and place of deposit of property in its transit, against the will of the owner, 
although such user has been continued for more than twenty years. The user can- 
not be urged by the public either as the foundation of a legal presumption of a 
grant, and thus justify a claim by prescription, or as evidence ot dedication of the 
premises to public use. Pear sal v. Post, 20 Wend. R., 111. S. C. on Error, 22 Wend. 
R., 425. 

A highway by necessity, is where the traveled road becomes obstructed or 
impassable for any cause. In such case the right of the public is allowed to pass 
over adjoining lands, even though the land may be sown with grain. 1 Ld. Raym., 
1 Rolle Abr.. 390a, 7 Gush. R. (Mass.), 408. But such rijrht gives the public no perma- 
nent easement in such adjoining lands. State v. Northumberland, 44 N. H. Rep., 628. 

Lands adjoining a public highway, remaining nninclosed, are considered 
as dedicated to the public u.se, and no action will lie by the owner against any per- 
son traveling over them. Cleveland v. Cleveland, 12 Wend. R.. 172. 



monuments 
and sectional 
corners. 



108 ROADS AND BRIDGES. [DIV. IT. 

Fourth, To cause the highways and bridges which are or 
uaysand g may be erected over streams intersecting highways, to be kept 
imdges. j n re p a j r? . ant [ t see ^hat persons working or repairing the 

Not tojiisturb highways leave undisturbed ail stones or other monuments 
marking sectional and other corners which may be in the pub-, 
lie roads, repaired or worked by them. (1) 

Fifth, To take possession of and keep all scrapers, plows 

Possession of and other tools belonging to their towns wherever the same 

may be found, and not allow the same to go to waste, and not 

lend the same except to persons employed by them to work 

the roads, by contract or otherwise. 

Sixth, To purchase for use upon highways such necessary 
pi l ements. im " tools, implements and machinery as they may think proper. 

Seventh, To cause to be erected and kept in repair at the 
Erect guide forks or crossing place of the most important public roads, a post 
and guide board, with plain inscription thereon, in letters and 
figures giving directions and distances to the most noted 
places to which such road may lead ; to prevent thistles, bur- 
Noxious weeds, dock, cockle-burs, mustard, yellow-dock, Indian mallow and 
gympson weed from seeding, and to extirpate the same so far as 
practicable ; and to prevent all rank growth of vegetation in 
the public highway, so far as the same may obstruct public trav- 
el; and the said Highway Commissioners may at their discretion, 
sink and construct wells, with a suitable pump or other suita- 
watering ^\e fixture and a water-trough attached thereto and keep the 

places. same in repair for public use, for watering teams, at the in- 

tersection of the most important roads in their towns ; and 
they may also adopt any other suitable and convenient mode 
of supplying water in troughs conveniently situated on the 
public highways for public use, at other points than at such 

(1) It is the duty afthe commissiners to see that the repairs necessary on 

, bridges are made, and if necessary labor is not performed through their neglect, or if 
the bridges are not kept in repair when they have funds in their hands applicable 
to such objects, they are liable for injuries that may result. Bartlett v. Crozier, 17 
Johns. R., 451. But commissioners of highways are not bound to build or repair 
bridges when not in funds to defray the expenses. The People v. Commissioners, etc.. 
7 Wend. R., 474. And an indictment against commissioners of highways for not 
repairing bridges is defective, unlets it aver that the defendants had funds or other 
means to defray the expenses. The People v. Adsit. 2 Hill R., G19. 

A.t common law the counties and not towns were liable to build and re- 
pair the necessary bridges, and the remedy for neglect was by indictment. Bartlett 
v. Crozier, 17 Johns. R , 452. This burden is imposed on counties by almost universal 
usage, and the exception throwing the burden on towns or particular corporations 
only the more clearly shows the general rule. Hoes v. Canal Trustee-, 14 111. R., 
402; Dennis v. Maynard, 15 111. R., 477. 

But it seems that the* inhabitants of a county are not liable at common law for not 
repairing bridges over canals. State v. County of Hudson, 1 Vroom R. (N. J.), 137. 

It is held in New Jersey that the inhabitants of a county are not indictable for not 
repairing bridges. State v. County of Hudson, 1 Vroom R. (N. J.), 137. 

Where a bridge >s built by an individual over a natural stream, for his 
own benefit, if the bridge be of public utility and is used by the public, they are 
bound to keep it in repair; but not so when the necessity for the bridge is created 
by the individual. Dygcrt v. Schenck, 23 Wend. R., 446. 



DIV. H.] COMMISSIONERS OF HIGHWAYS. 109 

intersections, and the cost of such improvements shall be paid cost— how paid 

out of the road and bridge fund of such town. 

Eighth^ To make out and deliver to their treasurer on or 
before the first day of May of each year, a list of able-bodied Make list for 
men in their town, between the ages of twenty-one and fifty po 
years, and assess against each person upon such list the sum 
of two dollars as a poll tax for highway purposes, to be paid 
to such Treasurer by the first Monday in July of each year : 
Provided, That paupers, idiots, lunatics and such others as p roV iso-per- 
are exempt by law, shall not be compelled to pay a poll tax sons exempt, 
for highway purposes. (1) 

(1) Form of List of Persons Liable to Poll Tax. 

County, 

Town of , 

We. the Commissioners of Highways of said Town of _ , do certify 

that the following is a list of able bodied men of said town, between 
the ages of twenty-one and fifty years, except paupers, idiots, lunatics and 
such others as are exempt by law ; and that we have and do assess against 
each person upon such list the sum of two dollars as a poll tax for high- 
way purposes, to be paid to the Treasurer of said Commissioners by the 
first Monday in July next, to-wit : 
Names of Persons. * Amount of Poll Tax. 

John Anderson, Two dollars . 

Jonathan Baker, Two dollars. 

James Jackson, Two dollars. 

Made out and delivered to the Treasurer of said Commissioners, this 

— day of , 18—, A. B., ) Commissioners 

C. D., [ of 

E. F., ) Higways. 

Trustees of ScJiooIs, School Directors or other School Officers performing 
like duties are exempted from road labor. Rev. Stat., 972, \ 72. This has reference to 
poll tax only. See McDonald v. Madison County, 43 111. R., 23. 

The, above provision concerning assessment of poll-tax is similar to that in 
t e law as formerly existing for the assessment of highway labor, under which it 
was held, that the township authorities might control the read labor of the inhabi- 
tants of an incorporated city or village situated within the township ; that an incor- 
porated city or village is a part of the township within Avhich it is situated, and is 
deemed as much a part thereof as the township is a part of the county; that the 
town authorities Under township organization therefore have the right to impose 
and collect a poll-tax of all the inhabitants of the town, whether residing within or 
out of the citv or village. O'Kane v. Treat et al., 25 111. R., 557. 

But where complete jurisdiction is given to an incorporated city or village in 
regard to the improvement of streets therein, the general road law does not apply, 
and the township authorities have no control in this respect. Fox v. City of Rock- 
ford, 38 111. R., 451. 

Under the former road law, -whereby the inhabitants assessed a poll-tax were 
required to work out the same in their respe"ti\e road districts, where an incor- 
porated village comprised a road district of the township, it was held, that the 
inhabitants assessed lor road labor in said village, could not be compelled by the 
township anthorities to work out their poll-tax outside of the corporation in which 
they lived, it being a separate road district. Town of Plcamnts v. Kost, 29 111. R., 490. 

It is competent jor the Legislature to provide for a poll tax and Cor com- 
pelling payment thereof, either in labor or monev, and a penalty may be prescribed 
for non-payment of the assessment. Fox v. City of hock-ford, 38 111. R„ 451. 

Labor assessed for the repair of roads, commonly called a poll tax, is not a 
tax within the meaning of the constitution concerning taxation, hence an exemp- 
tion as to persons in this regard is not unconstitutional. Town of Pleasants v. Kost, 29 
ill. R., 495 ; Fox v. City of Rockford, 38 111. R., 451. Such a tax is not a capitation tax. 
Fox v. City of Jlockford, :.8 111. R., 451. 

J Ite late exempting a School Director from working on the "highway, docs 
not exempt him from the payment of property tax. McDonald v. Madison County, 
43111. R., 23. 



110 



ROADS AND BRIDGES. 



[DIV. II. 



Notice to pay 



Account to 
town auditors. 



Poll tax. 
Fines. 



Amount ex- 
pended— 
Vouchers. 

Names— per- 
sons paying 
tax— persons 
fined. 



Ninth- — Within thirty days after such list is delivered 
to each Treasurer to cause written or printed notice to be given 
to each person so assessed, notifying him of the time when 
and the place where such tax must be paid or its equivalent 
in labor performed. (1) 

Tenth — The Commissioners of Highways of each town 
shall render to the board of Town Auditors at their annual 
meeting for auditing the accounts of town officers an account 
in writing stating : First, The amount of real estate and per- 
sonal property tax received by them ; Second, The sums 
received by them on account of poll tax ; Third, All sums received 
by them for fines and commutations and from all other sources ; 
Fourth, The amount expended by them for all purposes, spec- 
ifying by items the date, purpose and amount of each expen- 
diture, and to whom paid, with the vouchers for the same ; 
Fifth, The names of the persons assessed for poll tax ; Sixth, 
The names of all persons who have paid or worked out poll 
tax ; Seventh, The names of persons who have been fined and 



(1) Form of Notice to Person to Pay Poll Tax. 

To Mr. John Anderson, 

Sir: You having been assessed the sum of two dollars, as a poll tax 

for highway purposes, in the town of , for the year 18 — , you are 

hereby notified that such tax must be paid to the Commissioners of High- 
ways of said town, at the office [or, present residence] of the Treasurer of 
said Commissioners in said town, on or before the - 
18-, 
Dated this day of , 18 — , 

A.B., 

C. D., 

E. F., 



day of 



Commissioners 

of 

^Highways. 



Form of Notice to Person to Pay Poll Tax in Labor. 
To Jonathan Baker, 

Sir : You having been assessed the sum of Two Dollars as a poll tax 

for highway purposes in the Town of , for the year 18 — , you are 

hereby notified that the equivalent of such tax must be performed in 
labor on the highway at [State the place at or near where the labor is 
desired,) on the day of , 18 — , commencing at the hour of 



o'clock in the forenoon. 

Dated this day of- 



18—. 



A. B., ) 
C. D., [ 
E. F., 



Commissioners 
of 

Highways. 



The person assessed a poll tax is not liable -until lie has had notice to 
work; but he may waive the notice either expressly or by acts, from which the 
waiver may be inferred. McDonald v. Madison County, 43 111. R., 24. 

The commissioners might for convenience divide the town into road dis- 
tricts in like manner as under the former highway system. This would seem to afford 
greater efficiencv in prosecuting the work of improving the roads. And where labor 
is accepted in li'eu of money for poll-tax, it will in general give greater satisfaction 
if the work is allowed to be done in the district where the persons owing the tax re- 
sides. A record of such division should be made in the book of records kept by the 
commissioners. 



Drv. n.] commissioners of highways. Ill 

the sums which they have been fined, and what fines remain Fines unpaid, 
unpaid. (1) 

Eleventh — If the amount as hereinbefore provided to be 
assessed as a poll tax shall not be paid nor the labor performed T ^™ e p° 1] tax 
by the first Monday of July in such year or within ten days 
after notice is given after that time, it shall be the duty of the Noti ce. 

(1) Form of Account of Commissioners of Highivays to he Rendered to 
Town Auditors. 

To the Board of Town Auditors of the Town of -, County of , 

Illinois: 

As required by law, the Commissioners of Highways of said Town of 

, hereby render to you the following- annual account: 

First : Amount of real estate and personal property tax received : 
18—. 

Feb. 15. To amount received of collector $1000.00 

Second: Sums received on account of poll tax: 
18—. 

July 1. To amount received of John Anderson, $2.00 

" " " " " " Jonathan Baker, 2.00 

" " " " " " James Jackson, 2.00 

$6.00 
Third: Sums received for fines and commutations, and all other sources: 
18—. 

Aug. 1. To fine of John Doe, $2.00 

" 2. " " "John Smith 2.00 

$4.00 
Fourth: Amount expended for all purposes, by items, the date, purpose 
and amount of each expenditure, and to whom paid, vouchers for which 
are herewith: 
18—. 
June 1. By amount paid G. H., in full for repair of bridge 

at , $100.00 

June 2. By amount paid O. P., in full of contract for building 

bridge at 250.00 

June 3. By amount paid L. M., for one scraper, 10.00 

$360.00 
Fifth : Names of persons assessed for poll tax : 

John Anderson, 

Jonathan Baker, 

James Jackson, 
Sixth: Names of all persons who have paid or worked out poll tax: 

John Anderson, 

Jonathan Baker, 

James Jackson. 
Seventh: Names of persons who have been fined, and the sums they 
have been fined, and what fines remain unpaid : 

John Doe, $2.00 

John Smith, 2.00 

$4.00 
Fines unpaid : 
Richard Roe, $2.00 



112 



ROADS AND BRIDGES. 



[DIV. II. 



Suit for tax. 



Summons. 



Trial. 



Execution to 
issue. 



Levy by 
Constable. 



Highway Cominissioners to, in the name of the town, bring 
suit therefor against such person, before some justice of the 
peace having jurisdiction. (1) ■ 

Sec. 11. The justice to whom such complaint shall be 
made shall forthwith issue a summons, directed to any con- 
stable of the county, requiring him to summons such delin- 
quent to appear within five days before such justice, according 
to law, for such refusal or neglect. (2) 

Sec. 12. On the day of trial the justice shall proceed to 
hear and determine the case according to law, for the offense 
complained of, and shall forthwith issue an execution under his 
hand and seal, directed to any constable of the county where 
such delinquent shall reside, commanding him to levy such 
fine, with the costs of the proceeding of the goods and chattels 
of such delinquent. (3) 



Recapitctatiozs'. 

To amount received of collector, §1000.00 

" sums received on account of poll tax, 6.00 

" " " for fines and commutations, and all other 
sources, 4.00 

$1010.00 

By amount paid out on account of Roads and Bridges, 360.00 

Balance remaining on hand, 65U.00 

$1010.00 



Rendered this ■ 



day of • 



18—. 



- B., ) 
• D., [ 
■ F., J 



A. B., 
C " 

E 



Commissioners 

or 

Highways. 



TJie foregoing form of commissioners account is necessarily limited in ex- 
tent of details for want of space, but sufficient is given to afford an example for 
making an account according to facts as they may exist. The law contemplates 
that the account will be rendered in detail, giving items according to each nans- 
action. This will involve setting forth the name of each per-on assessed for poll- 
tax, which in towns of average population will require several sheets of paper. The 
commissioners will be aided much by the use of printed forms., which are furnished 
at the Legal Advisee office, Chicago. 

(1) JS'o written complain* is required to insttute proceedings under the 
above provision. A verbal application to the justice, on behalf of the om- 
missioners, will suffice. The suit will be the same as between individuals for an 
ordinarv money demand. The town should be entered as plaintiff by name, and 
the person proceeded against as defendant. Eubanks v. Ashley, 06 111. K., 177; Jack- 
sonville v. Black, 06 111. K., 507. 

(2) Th<> summons under the above prorisions mag be in, the general farm 

prescribed bv the statute for all cases. It is simply a proceeding on the part 01 the 
town, as plaintiff, to collect a money demand of the delinquent as defendant. For 
form of summons and commencement of suits, see Haines' Treatise, new ed., chap, 
v., p. 263. 

A. tax which a person lawfully owes may be recovered by action like a debt. 
Eyan v. Gallatin County, 14 111. R.,78; Crcps v. Baird, 30 Ohio R., 277. 

(3) The trial under the above provision will be conducted in like manner as 
anv civil action. The execution will be the same as in other cases, and governed 
by the same rules. For the law in regard to trials before justices, and forms oi pro- 
ceedings in full, see Haines' 1'reatise, new ed., chap, ix., p. 372. 



DIV. II.] COMMISSIONERS OF HIGHWAYS. 113 

Sec. 18. The Constable to whom such execution shall be 
delivered, shall for[th]with collect the moneys therein men- 
tioned. He shall pay the fine, when collected, to the justice to whom fine 
of the pence who issued the execution, who is hereb}' required paid - 
to pay the same to the Commissioners who entered the com- 
plaint, to be expended in improving the roads and bridges in 
their town. 

Sec. 14. The Commissioners of Highways may contract contract for 
with persons owing poll tax for road purposes to perform a l ^\^ pay 
certain amount of labor on any road or bridge in their town 
for the amount of such tax, and if the work is done within the 
time that the money should have been paid, the Commissioners 
shall give such person an order on their treasurer, which shall Order on 
be received by him instead of the money. (1) 

Sec. 14a. In counties under township organization there E i ec tion of 
shall be elected in each town, at the annual town meeting commis- 

*■ sioiiGrs 

each year, one commissioner of highways, who shall hold his 
office three years, and until his successor is elected and Term of 
qualified. (2) office - 

Sec. 15. At the first meeting of the Commissioners of High- Meetinggof 
ways, after they shall have been duly elected and qualified, they commissioners. 
shall proceed to choose one of their number as Treasurer. (3) Treasurer. 
The Treasurer so chosen shall receive and have charge of all Moneys . 
moneys raised in the town for the support and maintenance of 
roads and bridges. He shall hold such moneys, at all times, Hold and pay 
subject to the order of the Commissioners of Highways, and shall 
pay them over upon their order, or a majority of said Commis- 

(1) Form of Order of Commissioners on Treasurer for Discharge of 

Poll Tax. 

To the Treasurer of Commissioners of Highways of the town of : 

You .will receive of A. B., this, our order, instead of two dollars, in 
money, the amount of his poll tax for the year 18 — , he having- performed 
labor by contract to that amount. 

Dated this day of , 18 — . 

CD., ) Corn's of 
E. F., j" Highways. 

(2) The above section, designated as Sec. 14a, is section one of an act to pro- 
vide for the election of commissioners of highways, etc., approved and in force 
April 1 >, 1875. It is inserted here as properly forming a part of the general road law. 
Section two of said act is as follows : 

Sec. 'J. In all cases where, during the year A. D. 1874 or 1875, commissioners of 
highways were elected and have qualified and entered, or may hereafter qxialify and 
enter upon the discharge of their official duties, such elections and official acts 
shall be considered as lawful, and be of full legal force and effect. 

(3) The law contemplates that a regular meeting of the commissioners of 
highways will be held annually, soon after the annual town meeting and election 
of a new commissioner. 



out moneys 
on order. 



114 ROADS AND BRIDGES. [DIV. II. 

Bond, sioners, and not otherwise. (1) He shall execute bond with 

good and sufficient security, in such manner as the Supervisor 

condition of an( i tne Town Clerk shall determine, conditioned for the 

bond. faithful discharge of his duties as such Treasurer, and that he 

will honestly and faithfully account for and pay over upon the 

order of the Commissioners of Highways, all moneys that shall 

come to his hands by virtue of his said office; which bond 

shall be payable to the supervisor of the town and his successor 

Approval of in office, and be approved by the Supervisor and Town Clerk 

and filed in the Town Clerk's office. (2) They shall also 

c , h il^,. general choose at said meeting one of their number to act as General 

Duty. Overseer of Highways in their township whose duty it shall be 

(1) Form of Order of Commissioners of Highways. 



State of Illinois, 

County. 

Town of , 18—. 

To the Treasurer of the Commissioners of Highways of said Town : 

Pay to or Order, the sum of Dollars for {state 

brief y on what account). 

No. 

A. B., ) Commissioners 
CD., j" of Highways. 

(?) Form of Bond of Treasurer of Commissioner of Highways. 

Know all men by these presents, that we, T. R., as principal, and R. R. 
and C. H., as sureties, are firmly held and bound to W. D., supervisor 

of the town of , in the comity of , Illinois, and to his 

successor in office, in the penal sum of dollars, which payment to 

be web and truly made, we do bind ourselves, our heirs, executors and 
administrators, jointly and severally, by these presents. 

The condition of this obligation is such, that whereas, the above boun- 

den T. R. was, on the day of , 18 — , duly chosen treasurer 

of the board of commissioners of highways of the said town of , and 

is about to enter upon the performance of the duties of said office. 
aSow, therefore, if the said T. R. shall faithfully discharge his duties 
as such treasurer, and shall honestly and faithfully account for. and pay 
over upon the order of the commissioners of highways of said town, all 
moneys that shall come to his hands by virtue of his said office, then 
this obligation shall be void, otherwise**to be in full force. 

Witness our hands and seals, this day of , A. D. 18 — . 

T. R„ [seal. 

Approved bv us. A. B., Supervisor. R. R., [seal. 

C. D., Town Clerk. C. H., [seal. 

Hie law does not fix the amount in which the treasurer's bond shall be 
taken. This would seem, to he in the discretion of the supervisor and town clerk. 
It should he ample in amount to cover all money that may come to the hands of the 
treasurer. It is proper that the supervisor and town clerk should endorse their ap- 
proval on the bond. 

A. town supervisor cannot maintain an action on the bond of a commis- 
sioner of highways for neglect to deliver to his successor money which has been 
raised and paid oVer to him for the purpose of paying damages occasioned by the 
laving out of a highway where such highway has never been opened or worked, 
because the proceedings 'layiDg it out were void. Gailor v. Berrick, 42 Barb. R., 79. 



DIV. II.] KEGKJLATIONS IND PENALTIES. 115 



to take charge of and safely keep all tools, implements and 
machinery belonging to said town, and shall in accordance supervision of 
with the direction of the Board, have general supervision of all brkig(5" d 
roads and bridges in their said town. (1) 

Sec. 15a. The Treasurer of the Board of Highway Com- compensation 
missioners shall receive for his services as such Treasurer, of treasurer - 
such compensation as may be agreed upon by said 
Board, not exceeding two per cent, on all moneys he 
may receive and pay out, except such moneys as he 
may pay over to his successor in office, such compensation 
to be fixed by resolution of the Board at the time such Treas- Fixed by reso- 
urer is appointed, and no other and different sum shall be lutl0n ' 
allowed such Treasurer during his term of office. (2) 

REGULATIONS AND PENALTIES. 

Sec. 16. For destroying or defacing any guide-board, post or Defacing guide 
milestone, or any notice or direction put up on any bridge or boards ' 
otherwise, the offender shall forfeit a sum not less than three Fine. 
dollars nor more than fifty dollars. 

Sec. 17. If any person shall injure or obstruct a public obstructing 
road by falling a tree or trees in, upon or across the same or 
by placing or leaving any other obstruction thereon, or en- 
croaching upon the same with any fence, or by plowing or' 
digging any clitch or other opening thereon, or by turning a 
current of water so as to saturate or wash the same, or shall 

(1) It is proper that the commissioners should issue to the general over- 
seer of highways a warrant or certificate of his appointment. The following may- 
be the form : 

Form of Warrant of appointment of General Overseer of Highivays. 
State of Illinois, 

County, 

Town of , 

Be it known, that at a meeting of the commissioners of highways of the 

township of , held on the day of , 18 — , being the first 

meeting after the election of commissioners of highways, E. F., one of 
said commissioners was duly chosen as general overseer of highways of 
said township. 

Given under our hands, this day of , 18 — . 

A. B., \ Corn's of 
CD., ) Highways. 

This appointment of general overseer it seems, will continue until the 
next annual meeting of the commissioners. 

(2) The above section, designated as See. t&to, is section three of an act to 
provide for the election of commissioners of highways, etc., approved and in force 
April 15, 1875, as amended by an act approved May 11, 1877, and in force July 1, 1877, 
and is inserted here as being properly a part of the general road law. 

The resolution of the board fixing the compensation of the treasurer may 
be in the following form : 



116 ROADS AND BRIDGES. [DIV. II. 

leave the cuttings of any hedge thereon, for more than five 
days, shall forfeit for every such offense a sum not less than 

Penalty. three dollars nor more than ten dollars, and in case of placing 

any obstruction on the highway, an additional sum of not ex- 

ohstruction ceeding three dollars per day for every day he shall suffer such 

Penalty. obstruction to remain after he has been ordered to remove the 

same by any of the Commissioners of Highways, complaint to 
be made by any person feeling himself aggrieved: (1) Provided, 

Proviso— when This section shall not apply to any person who shall lawfully 
fall any tree for use, and will immediately remove the same 
out of the road, nor to any person through whose land a public 
road may pass, who shall desire to drain his land, and shall give 
due notice to the Commissioners of such intention : And pro- 
vided further, That any Commissioners, after having 

Proviso Com- • * 

missioned may given reasonable notice (to the owners) of the obstruction, or 

remove. person so obstructing or plowing, or digging ditches upon such 

road, may remove any such fence or other obstruction, fill up 

Form of Resolution of Commissioners fixing Compensation of Treasurer. 

Resolved, that the compensation of the treasurer of the commissioners 
of highways during- his term of office be and the same is fixed at [slate 
amount of per centage fixed,] on all moneys he may receive and pay out, 
except such moneys as he may pay over to his successor. 

The Commissioners of highways should keep a record of their doings as 
such ; they should enter therein the res /lution fixing the compensation of their 
treasurer. 

(1) IF/ien one obstructs a road u'liich is used by the. jniblic for even the 
shortest period of t me, he does so at his peril, for it it should be made to appear that 
such road was legally established, he would be accountable whether he had ac.ual 
knowledge of the fact or not. Ferris v. Ward, 4 Gilm. R., 499. 

The fact that a road is little used does not authorize a party to close it up. 
Dumars v. Francis, 15 111. R., 543. 

A party may remove a fence erected across a highway, if it has before the 
erection of the fence been dulv opened, without being guiltv of trespass. Marcyy. 
Taylor, 19 111. R., (534. 

Obs'ructing a public highway by building a fence therein, is a different and 
distinct offense from that of refusing to remove a rence which was in the road when 
it was laid out. People v. Young. 72 111. R., 411. Where the wrong consists in the 
omission to remove fences existing before the establishment of the road, th ■• prose- 
cution should be under that section of the statute applicable to the offense of omis- 
sion, rather than under that section contemplating some act dons, by the offender 
after the establishment of the road, and the defendant is entitled to ask instructions 
to the jury concerning the admissibility of evidence under those sections of the statute 
upon which the prosecution is based. Wiley v. Town of Brimfield. 59 111. R., 306. 

There is a difference between the offense of obstructing a highway and con- 
tinuing an obstruction. Crosby v. Gipps, 19 111. R., 310 ; Bick rdike v. Dean, 21 111. R., 
199. 

A party is not liable, 2iS a matter of course, to the highest penalty imposed for 
obstructing a highway. Leech v. Waugh, 24 111. R., 229. 

A. t mporary obstruction would not necessarily be deemed an obstruction of 
the highway so as to incur the penalty, unless it appeared to be done with intent to 
•prevent the free use thereof. Wyrnan v. The State, 13 Wis. R., 663. 

A street of an unincorporated town or village, when dedicated, is a public high- 
way, and any person obstructing it will be liable to the statutory penalty. Other- 
wise, if incorporated, as then the streets are vested in the town, and are subject to 
the corporate authorities. Leechy. Waugh et al., 24 111. R., 228. 

All the land within a highway fence is not necessarily subject to the right 
of way ; and if not it may be occupied by the owner: and if "he places an obstruc- 
tion there and another is injured by it he is not thereby liable ; and it is held that 
though such obstruction be within the highway, he is not liable, unless the person 



DIV. II.] REGULATIONS AND PENALTIES. 117 

injur*, d exercised ordinary diligence to avoid it. 6 Cowen JR.. 180. Yet he would be 
otherwise liable for obstructing the highway. Bee People v. St, Louis, 5 Gilin.. K. 371. 

Where the oicwr of the soil dug a raceway across a road to conduct water to 
his mill, it was held that he must restore it to a traveling condition, and if any in- 
jury occurred, though he used the utmost care to prevent it, he was liable in dam- 
ages; that the right of the owner depended upon mere sufferance ; whenever an 
injury occurred the raceway would be adjudged a nuisance. Dygert v. Sckcnck, 23 
Wend. K.. 446. 

But there is no such thing as a prescriptive right, or any other right, to maintain 
a public nuisance. Philadelphia, etc., P. P. Co. v. State, 20 Md. R., 157. 

It is it legitimate use of a street or highway to allow a railroad track to be laid 
in it. Murphy v. City of Chicago, 29 111. R.. 28 1. 

A private corporation is liable to an action for an injury to a traveler from 
an obstruction placed by it in a way built and kept in repair by it, and used by the 
public so as to have become a public way. although the Corporation was not author- 
ized by its charter to build it. Taylor v. Boston, etc., Co., 12 Gray R. (Mass.), 415. But 
an indictment could not be maintained unless the road was shown to be a public 
highway. State v. Price. 25 Md. R., 449. 

Highways, whether on land or tvater, are designed for the accommodation 
of the public for travel or transportation, and any unauthorized or unreasonable 
obstruction thereof, is, in legal contemplation, a public nuisance. Garrish v. Brown, 
51 Maine R., 256 ; Columbus v. Jaques, 30 Ga. R.. 506. 

Where a bridge over a navigable stream is built for public uses, and pro- 
duces a public benefit, and leaves a reasonable space for the passage of vessels, it is 
not indictable. Mississippi, etc., R. 2i. Co. v. Ward, 2 Black. R. (U..S.), 485. 

In an action to recover a penalty for obstrucli g a highway, it was held 
that it is not necessary to produce record evidence of the road, and if such evidence 
is introduced, as for instance the order establishing the road, it is not necessary 
prior to the introduction of such order, to show that all the previous steps required 
by the statute have been taken ; but that the presumption is, that the antecedent 
proceedings have been regular, wh~ch presumption, however, is subject to be 
rebutted. Nealyv. Brown, 1 Gilm. R., 10; see also, Sage v. Barnes, 9 Johns. R., 365. 
In such an action the defendant's gu.lt should be established by a clear preponder- 
ance of evid nee; the rule governing criminal cases does not apply. Town of 
I v. Biggs, 58 111. R., 483. 

If the, complainant gives a local description, sufficient to fix the precise 
point obstructed, and also the points of termination of the road, the latter may be dis- 
regarded. But when the allegation is general, that a road leading from one point 
to another has been obstructed, the existence of the road between the points named, 
must be proved as a matter of essential description. The defendant's guilt must be 
established by a clear preponderance of evidence, but not necessarily beyond a rea- 
sonable doubt, as in the case of graver offenses. Town of Lewistown\. Proctor, 27 
111. R., 414. 

It cannot be material to the defendant whether, in the order establishing the 
road, damages were assessed to all the owners of the land along the route, so they 
were assessed to him, he being one of the owners. It might be that the other own- 
ers had released the damages, or were entitled to none. Clifford v. Town of Eagle, 35 
111. R., 444. 

It is the duty of the commissioners of highways summarily to remove from 
the higlrway a building or other obstruction placed thereon, interfering with public 
travel. They are not limited to an action to recover the statute penalty for its 
obstruction. Cook v. Harris, 61 N. Y. R., 448. 

A jjarty may be indicted for obstructing a public road, but for continu- 
ing an obstruction he should be prosecuted civilly for the penalty, after he shall 
have been ordered to remove it. Under an indictment for obstructing a road, he 
can not be convicted for continuing an obstruction. These are distinct offenses. 
Lowe v. People, 28 111. R., 518. He should at anv rate have notice to remove the 
obstruction. Sweeney v. The People, 28 111. R., 208. 

On a trial under an indictment for obstructing a highway, the questions 
whether the road was ever worked or recognized by the public authorities, or 
whether the ro d was ever used as a public highway, are proper, and the answers 
should be admitted in evidence. The description of the road in the indictment is 
material, and must be proved as laid. The description of a road as leading from A 
to B is sufficient. Martin v. People, 23 111. R., 395. 

The act of an individual obstructing a public road, cannot divest the public 
of its rights in respect to the road, unless submitted to for such a period of time as 
to raise a fair presumption of abandonment. Power v. Watkins, 58 111. R,., 380. 

An indictment for a nuisance in so placing a building that it encroaches on 
a highway, need not designate what part of the building so encroaches. State v. 
Atherton, 16 N. H„ R M 203. 

A road only one mile long, and from ten to fif teen feet wide, leading from a 
public highway to a church, and used by the people of the neighborhood for sixty 
years in going to and from the church, and which connected with a country road 
leading to a mill in the neighborhood, and to a railroad station, but which had 
never been under the charge of an overseer, nor worked as a public highway, is not 
a public highway so as to subject one to indictment for obs.ructing it. "state v. 
McDaniel, 8 Jones L. (N. C), 284. 

The obstruction of a legally established highway which cannot be used by the 



118 ROADS AND BRIDGES. [DIV. II. 

Notice— cost any such ditch or excavation, and recover the necessary cost 

recovered. f guc ] 1 rem oval from such owner or other person obstructing 
such road aforesaid, to be collected by said Commissioners be- 
fore any justice of the peace having jurisdiction. (1) 

Sec. 18. If any person shall purposely destroy or injure 

bSdge? g an y sidewalk, public bridge, culvert or causeway, or remove 

any of the timber or plank thereof, or obstruct the same, he 
shall forfeit a sum not less than three nor more than one hun- 
dred dollars, and shall be liable for all damages occasioned 

Liable for thereby and all necessary costs for rebuilding or repairing the 

damages. same. 

Sec. 19. All suits for the recovery of any fine or penalty 
Suit to recover under this act shall be brought in the name of the town in 
penalty. which the offense is committed, before any justice of the peace 

public for the purposes of a highway in consequence of natural obstacles, is not a 
punishable offense. State v. Shinkle, 40 Iowa R., 131. 

In an action of tort for obstructing a right of way damages for the conse- 
quent diminution of rents cannot be recovered,unless specially alleged in the declar- 
ation. Adams v. Barry, 10 Gray R. (Mass.), 361. 

A. resort to chancers is proper, and more effectual than the remedy at law, 
where an injury of a public nature is threatened, as the inclosure of a highway, 
• whereby public travel is in danger of being interrupted, and thereby great num- 

bers of the citizens subject to petty loss and annoyance, by reason of such obstruc- 
tion. Craig v. Tlie People ex rel., 47 111. R., 487. 

But where the nuisance complained of is the mere obstruction of a highway, the 
remedy at law is complete. If, in such a case, however, it were found that there 
was no sufficient remedy at law, it might be that equity would interpose. Dunning 
v. City of Aurora et al., 40 111. R., 481. 

(1) Form of Notice to Owners to remove Obstruction. 
To A. B., 

Sir: You are hereby notified that there is an obstruction in the public 
road, crossing land of which you are the owner, at [Give some description 
of 'the place sufficient to designate it,] consisting of [State the obstruction 
as: a fallen tree; a fence; a ditch or the like,] and unless you shall remove 

the same within days from the date of service of this notice, the 

commissioners of highways of the town of will proceed and remove 

the same at your cost, as provided by law. 

Dated this day of , 18 — . 

C. D., ) Corn's of 
E. F., [• Highways of the 
G. H., ) Town of . 

The law provides that reasonable notice shall be given to the owners, of 
an obstruction before the commissioners are authorized to proceed and remove it. 
As to what length of time is a reasonable notice will depend on the circumstances 
of the case. If it will require more than one day's time to remove an obstruction, 
then reasonable notice would be more than one day. A party should have notice to 
remove an obstruction. Sweeney v. The People, 2S 111. R., 208. 

On a bill to enjoin the tearing down of the fence of complainant, where 
the defendants insist on their right to remove the fence because they are com- 
missioners of highways, and the fence is an obstruction to a public highway, the 
burden of proving that there is a highway at the place where the fence is, is upon 
them. Mclntyre et a 1 , v. Storey, 80 111. R., 127. 

Where a road had been opened and traveled for many years, and it was claimed 
that certain parties had obstructed the same by encroachment of their fences to its 
center, which fact was disputed, and it appeared that the encroachment, if any, was 
made under an honest claim of right. Held, that it was error to award a mandamus 
against the commissioners of highways to compel them to remove the obstruction, 
there being no such duty imposed on them by statute, and because the law 
afforded ample redress by suit for the penalty imposed, and by indictment, in w r hich 
the parties charged could be heard in defense of their claim. Commissioners of High- 
ways v. The People, 66 111. R., 3"9. 



DIV. II.] REGULATIONS AND PENALTIES. 119 

or police magistrate within the town, who shall have jurisdic- jurisdiction of 
tioii in such cases, to the extent of their jurisdiction in other Jlustlce ' 
and it shall be the duty of Commissioners of Highways 
asonably prosecute for all fines and penalties under this commission- 
aci : but in case of a failure of said officers to so prosecute, com- prosecute. 
plaint may be made by any person : Provided, Said person 

shall before bringing said suit in the name of the town, give a Proviso— Bond 
. j x- • ■ i j r • ,-l „ » & . for costs, 

bond tor costs, as is provided tor m the case ot non-resi- 
dents. (1) 

Sec. 20. All fines recovered under the provisions of this Disposition of 
act, unless otherwise provided, shall be paid over to the Com- fines - 
missioners of Highways of the town where the ofiense is com- 
mitted, to be expended upon the roads and bridges in the 
town. 

Sec. 21. It shall be lawful for the owner or occupants of 
land bordering upon any public road, to build sidewalks not to Buildside . 
exceed six feet in width, and to plant shade and ornamental walks, 
trees along and in such road, at a distance not exceeding one- 
tenth of the legal width of the road from its margin ; and also 
to erect and maintain a fence, so long as shall be actually nec- 
essary for the purpose of raising a hedge on said margin, a P i ant trees, 
distance of six feet from and within said marginal lines. (2) fence ' hQd se- 

Sec. 22. Any person owning, using or occupying lands on 
both sides of -any public highway, shall be entitled to the priv- Right t0 make 
ilege of making a crossing under said highway for the pur- crossing. 

(1) Suits for tJie recovery of fines and penalties under the above section may 
be brought and prosecuted in the manner of an ordinary civil action between indi- 
vidua s for a money demand. Ewbanks v. Ashley, 36 111. R., 177. The complaint is 
not required to be in writing or under oath. The summons may be in the general 
form prescribed by the statute on this subject. See Haines' Treatise, new ed.. title 
'"Proceedings in cases of fines, penalties and forfeitures," p. 282, where full in- 
structions are given for bringing suits in such cases. 

1 he following is the form of howl for costs provided for in the case of non- 
residents. See Haines' Treatise, new ed., 282. 

Form of Bond for Costs. 

State of Illinois, [ 

County, J ss - 

A B ) 

vs. [ Before , Justice of the Peace. 

C D ) 

I, E. F., do enter myself security for all costs that may accrue in the 
above cause. 

Dated this day of , 18—. 

E. F. 

The provision in regard to security for costs must be observed. It cannot be 
dispensed with. Stward v. Wilson, 1 Scam. R., 193. 

(2: A. fence placed in the hic/Jnvay for the purpose of protecting a growing 
hedge, if built pursuant to the statute, is not considered an obstruction in the 
highway. Harding v. Town of Hale, 61 111. R., 192. 

Shade trees along a highway, although within the bounds of the road, are the 

Eroperty of the owner of the land adjoining ; they are subject to his control, and 
e has a right to remove them. Lancaster v. Richardson, 4 Lansing R. (N. Y.), 136. 



120 ROADS AXD BRIDGES. [DIV. IT. 

pose of letting his cattle and other domestic animals cross said 
Proviso-erect roac ^ : Provided, Said person shall erect at his own expense, 
bridge and a good and substantial bridge, with good railings on each side 
Expense. thereof, and build an embankment, of easy grade, on either 
side of said bridge ; said bridge to be not less than eighteen 
Approved by feet wide, and to be approved by the Commissioners of High- 
commissioners. wa y S f the town in which said bridge is built, and the same 
Owner to keep to be kept constantly in good repair, by the owner or occupant 
m repair. Q £ sa ^ i an d ? the construction subject always to the consent 
and approval of the Commissioners of Highways of said town : 
crossing on And 'provided, further, That in case such crossing is made on 
any water-way or natural channel for water, and where a cul- 
vert or bridge is maintained as required for road purposes, said 
owners or occupants shall not be required to pay for or con- 
struct any more of said crossing than the additional cost of 
Expense of such crossing over and above the necessary cost of a suitable 
constructing. cu i ver t or bridge for road purposes at such place. (1) 

Sec. 23. And where any bridge on a public road is con- 
owner connect structed over a stream or body of water, where the depth or 

lpnop "with 

bridge. current of water, or the nature of the bank or banks of such 

stream or body of water is such as to render a fence on the 
marginal line of the public road impracticable, or very expen- 
sive to construct and keep in repair, the owner of the land 
bordering on the public road shall have the right to connect 
the road fence on either or both banks of the stream or body 
of water, to said bridge or any pier or abutment thereof, or 
to an} T embankment or timber approach to said bridge : Pro- 

Not to obstruct vz'cM, That no necessary ford across said stream or body of 
water shall be permanently obstructed thereby : And provi- 

(1) It is proper that the consent and approval of the commissioners in regard to 
the construction of a bridge over a crossing, should be reduced to writing. This 
•will avoid questions that might otherwise arise. The following may be the form of 
such consent. 

Form of Consent of Commissioners of Highways for Construction of 
Bridge over Crossing. 
We, the commissioners of highways of the town of , do con- 
sent to the erection of a bridge, by G. H., on the highway at {state the 
place where with reasonable certainty] so as to afford a crossing of said 
highway, subject to be kept constantly in good repair by him as required by 
law. 

Witness our hands, this day of , 18 — . 

A. B., ) Commissioners 

CD., [ of 

E. F., ) Highways. 

The approval of the bridge by the commissioners may be endorsed on or attached 
to the writing of consent, in the following form : 

"We, the Commissioners of Highways, do approve of the bridge built 
in pursuance of the within written consent." 

(To be signed by the Commissioners.) 



TUY. II.] HEGULAT10NS AND PENALTIES. 121 

urther, That any such connecting fence shall be con- 
Btructed by the consent and under the direction of the Com- Consent of 

* ., TT . , „ , . i • i i i • i commissioners. 

missioners of Highways ot the town in winch the bridge may 
be located. (1) 

Sso. 24. All public highways laid out by order of the 
Commissioners of Highways, or Supervisors, on appeal, shall be 
not less than fifty feet wide nor more than sixty feet wide : width of roads. 
Provided, The Commissioners may lay out roads not less 
than forty feet wide nor more than sixty feet wide, when so Petition for 
prayed for by the petitioners, if such road does not exceed two special Wldth " 
miles in length; And provided, further, That all public roads 
shall be opened within five years from the date of the filing °££™ a in five 
of the order laying out the same, or be deemed vacated. *(2) 

Sec. 25. The Commissioners of Highways of each town Fast driving on 
may, when they shall deem it advisable, put up and maintain, bndge - 
in conspicuous places, at each end of any bridge of such town, 
maintained at the public charge, a notice with the following Notice, 
words, in large characters : Five dollars fine for riding or Fine $5.00. 
driving on this bridge faster than a walk. 

Sec. 26. Whoever shall ride or drive faster than a walk Fast driving on 
over any bridge upon which notice shall have been placed, 
and shall then be, shall be guilty of a misdemeanor, and, upon Misdemeanor. 

(1) Where the consent of the commissioners under this section is reduced to 
writii g, the form pr-escribed under section_23 for a crossing, may be used by being 
varied to suit the occasion. 

(2) To avoid the vacation of a road under the five years limitation, 
it is necessary that it should be opened its entire length within five years. It is not 
sufficient to open only a part of it. Green et al. v. Green, 31 111. R., 320. If any part 
is .permitted to remain fenced tip and the travel turned another way to avoid a 
field, this will vacate so much of the road as remains fenced up. Lyon v. Munson, 
2 Cowen R., 426. Such non-user operates as an abandonment of the road; and 
whether the r:ght of way has been obtained by release or by condemnation or 
payment of damages, the right of the owner to resume the exclusive use and occu- 
pancy of the land is complete and unqualified after such abandonment. Green et al. 
v. Green, 34 111. R., S26. 

If the town authorities fail to procure the riff Jit of way until the day before 
the five years expire, and it is apparent that the road cannot be opened within the 
time, a court of equity may restrain the town officers from opening a small portion 
of he road t efi >re the time expires. Green et al. v. Green, 34 111. R., 320. 

Where, the fipe uears, within which a public road is required to be opened, 
expires pending litigation in respect to the establishing of the road, the time con- 
sumed in the litigation must not be estimated as a part of the five years. Commis- 
sioners of Highways v. The People, ex rel., 38 111. R., 347. 

The failure by the commissioners of hiffhwai/s to cause a public highway 
long in use. to be opened to its full statute width for a period of thirty years, does 
not operate to extinguish the rights of the public to the parcels not so opened and 
worked. Walker v. Caywood, 37 N. Y. R., 51. 

Where, after the making of an order in 1839, laying out a road, the road was that 
year open in fact, and during 1839 and succeeding years, was open and partially 
worked throughout the route, and was traveled by the public more or less, every 
year from the time of its being laid out, opened and worked : held, that this was an 
opening of the road within the time required by the statute. Marble v. Whitncu, 28 
N.Y. R. (Tiffany), 297. 

Where the order establishing a road was made August 19, 1863, notice to remove 
fences was served February 1, 1868. The commissioners opened a passage way 
July 1. 1868, and allowed bars to be put in temporarilvto protect crops, on condition 
that no one should be hindered in passing through. " Held, a sufficient opening to 
avoid vacation. Wiley v. Town of Brimfield, 59 111. R., 306. 



122 



ROADS AND BRIDGES. 



[DIY. II. 



Fine $5.00. 



Ditches. 

May enter on 
land to 
construct. 



conviction, shall be fined for any such offense the sum of five 
dollars ($5.00). (1) 

Sec. 27. The Commissioners of Highways of the several 
towns are hereby authorized to enter upon any land adjacent 
to any highway in their town for the purpose of opening any 
ditch, drain, necessary sluice or water course, whenever it 
shall be necessary to open a water course from any highway 
to the natural water courses, and to dig, open and clean ditches 
upon said land for the purpose of carrying off the water from 
said highways, or to drain any slough or pond on said high- 
way : Provided, That unless the owner of such land or his 
ap;ent shall first consent to the cutting of such ditches, the 
Commissioners shall apply to any Justice of the Peace in the 
county in which such road is situated, for a summons directed 
to any constable of said county, commanding him to summon 
the said owner to appear before the said justice, at a time and 
place specified in such summons, not less than five nor more than 
fifteen days from the date thereof, for the purpose of having the 
damage assessed, which such owner may sustain by reason of 
the digging or opening of such ditches or drains. The said 
summons shall be under the hand of such justice, and be serv- 
ed in the same manner as a summons is now served in civil 
actions before justices of the peace. On the return of such 
summons, a venire shall be issued for a jury, as in other cases 
in the trial of civil actions before justices of the peace, which 
jury shall assess such damages and render a verdict therefor, 
which shall be final and conclusive, of the amount of damages 
sustained by such person, and the amount so awarded shall be 
audited, levied and collected in the same manner provided in 
Section 14, Article 1 7, of the township organization law, and 
the Commissioners of Highways shall be warranted, and are 
hereby empowered to enter such lands and dig, open, and 
clean such drains, ditches and water courses as aforesaid for 
the purposes contemplated in this act, and are further author- 
ized to use and employ the road labor and money of their 
town for such purposes : Provided, That in case the owner of 
said lands is a non-resident, service may be had by leaving a 



Proviso— Con- 
sent of owner. 



Proceedings 
before justice. 



Assessment of 
damages. 



Service of 
summons. 

Jury. 

Verdict con- 
clusive. 



Collection of 
damages. 



Road labor on 
ditches. 



Non-resident 
owner— Service 
by copy. 



A. road passing through unimproved and uninclosed lands is considered, 
in a contemplation of law. opened when established. Ferris v. Ward, i Gilm. R., 
499. 

(1) Suit for recovery of the fine, under the above section, may be brought before 
a justice of the peace of the county, it being a misdemeanor and the punishment 
being by fine only. The proceeding should be commenced by affidavit, as in case 
of assault and battery, or other like misdemeanors. For the law and forms and 
mode of proceeding in this regard, see Haixes' Treatise, new ed., part 2, chap, ix., 
p. 738. 



DIV. II.] ALTERING, WIDENING, VACATING AND LAYING OUT. 123 

copy Avitli the occupant or agent, or by notice in the same Notice, 
manner as prescribed in section forty-one (41) of this act. (1) 

ALTERING, WIDENING, VACATING AND LAYING OUT EjOADS. 

Sec. 28. The Commissioners of Highways may alter, widen Altering, 
or vacate any road, cV lay out any new road in their respec- roads™ 1 ^' etc " 
tive towns, when petitioned by any number of freeholders, not 
less than twelve, residing within three miles of the road so 
to be altered, widened, vacated or laid out. (2) 

Sec. 29. Said petition shall set forth in writing, a Petition, 
description of the road, and what part thereof is to be 
altered, widened or vacated, and if for a new road, the 
names of the owners of lands, if known, and if not known it p| t iu n! es °* 
shall be so stated, over which the road is to pass, the points at 
or near which it is to commence, its general course, and the 
place at or near where it is to terminate. (3) 

(1) Form of Summons to oivner of land to have Damages Assessed. 
State of Illinois, 

County, 

The People of the State of Illinois, to any Constable of said County, 
Greeting: 
You are hereby commanded to summon A. B. to appear before me, at 

, on the clay of— , 18 — , at o'clock — M., for the 

purpose of then and there having the damage assessed which he, said A. 
B., may sustain by reason of the digging [or, opening] of a ditch (or, as 

ise may be,) by the commissioners of highways of the town of , 

across the land of said A. B., at [state the place where as near as may be:] 

Given under my hand this day of , 18 — . 

John Doe, J. P. 

The proceeding in this case may he docJceted and conducted like a suit 
in a civil action. The town may be named as plaintiff or actor, and the party sum- 
moned, as defendants. The justice can observe the like form of docket entry of the 
proceedings as in ordinary civil actions, varying the same when necessary to suit 
the occasion. The verdict of the jury should be entered on his docket in the pro- 
ceeding as in orher cases whereby the finding of the jury will become a matter of 
public record for justification of future acts of the commissioners in the premises. 
The number of the jury in this case will be twelve. For proceedings in trial of 
civil actions and complete forms of docket entries, see Haines' Treatise, new ed., 
under appropriate heads. 

(21 A freeholder is defined fo be one who owns an estate in fee simple, fee tail, or 
for life : the possessor of a freehold. A freehold is an estate in real property of inheri- 
tance or for life, or the tenure by which it is held. The term freeholder, mentioned 
in the above section in its simplest signification, means one who is the owner of real 
estate. 

(3) Form of Petition for the Alteration of a Road. 
To the Commissioners of Highways of the town of, etc. 

The undersigned freeholders, residing within three miles of the road 
known as [describe the road] do hereby petition you to alter said road [or 
a portion of said road], as follows: Commencing &t[state the place of com- 
mencing] in said town of , and running the line of said road as fol- 
lows: [state the manner in which the alteration of the line is desired] and 
your petitioners pray that you will proceed and alter said road accordingly. 

Dated at , this day of , 18 — . 



124 ROADS AND BRIDGES. [DIV. II. 

Sec. 30. Whenever any such number of freeholders deter- 
Oopy of peti- mine to petition the Commissioners of Highways for the alter- 
posted. ation, widening or vacation of any road, or laying out any new 

. -» 

Form of Petition for widening a Road. 
To the Commissioners of Highways of the town of, etc. : 

The undersigned freeholders, residing within three miles of the road 

known as [describe the road], the same being now feet in width, 

do hereby petition you to widen the same to the width of feet, and 

your petitioners pray that you will proceed and widen said road accord- 
ingly. 

Dated at , this day of , A. D. 18—. 

Form of Petition for vacation of Eoad. 
To the Commissioners of Higlrways of the town of, etc. : 

The undersigned freeholders, residing within tnree miles of the road 
known as [describe the road], do hereby petition you to vacate said road 
[or so much of said road as lies in said town, or the following portion of 
said road, describing the portion,) and your petitioners pray that you will 
proceed and vacate said road accordingly. 

Dated at , this day of , 18 — . 

Form of Petition for Neiv Road. 

To the Commissioners of Highways of the town of , in the county 

of , State of Illinois : 

The undersigned freeholders, residing within three miles of the route 
hereinafter mentioned and described for a road, do hereby petition to you 

to lay out a new road of the width of feet, as follows: commencing 

at [or near, giving the point at or near which the road is desired to com- 
mence.] and running thence in a [north- easterly) direction, on the most 

eligible route to intersect [the road, at or near the house of S. L.~\ 

The names of the owners of lands over which the same is to pass are A. B., 
C. D. and E. F., and your petitioners pray that you will proceed to lay 
out said road and cause the same to be opened according to law. 

Dated at , this day of , A. D. 18—. 

Where the owners of lands over which the road is to pass are not known, then 
that fact should be stated in the petition, which statement should be as follows : 

" The names of the owners of lands over which said road is to pass are 
not known to your petitioners. " 

If a port on of the owners are known, and others not known, the statement can 
be as follows : 

" The names of the owners of lands over which said road is to pass, as 
far as known to your petitioners, are A. B., C. D., etc. The names of 
the owners of the following lands which said road is to pass over, to wit: 
[here describe the land ivith reasonable certainty,) are unknown to your 
petitioners.'" 

On presentation of a petition to the commissioners of highways they 
should first examine and see that it is regular upon its face. 12 so, their next duty- 
is to ascertain whether the requirements of the law have been conipli* d with. If 
not, they will be justified in refusing to act. The law requires : First, that the peti- 
tion shall be signed by not less than twelve freeholders, residing within three miles 
of the road proposed to be altered, widened, vacated, or laid out. Second, if it is to 
alter, widen or vacate a road, the petition must set forth a description of the road 
which it proposes to change, and, if a new road, it must set forth the names of the 
owners of the lands if known (and if not known, it must be so stated,), over which 
it is to pass, the point at or near which it is to commence, its general course, and the 

Elace at or near where it is to terminate. Third, that a copy of the peiition shall 
ave been posted up in three of the most public places in the town, in the vicinity 
of the road to be laid out, altered, widened or vacated, at least twenty days before 
any action is had in reference to the petition. 
Upon the-*jirst point, the commissioners may satisfy themselves from actual kn owl- 



DIV. II. ALTERING, WIDENING, VACATING AND LAYING OUT. 125 

5 — — ^-^— — — — — — — — ^— 

road, they shall cause a copy of this petition to be posted up p os t in public 
in throe of the most public places in the town in the vicinity places - 
of the road to be laid out, altered, widened or vacated, at least 

edge, or upon proper inquiry. The second will appear from the petition itself. 
Upon the third point it is competent to be shown by the affidavit of persons posting 
the notices, or by other legal evidence. Cassidy v. Smith, 13 Minn. R. WeUs et al. v. 
~ Dl. R.,343. 

In n proceed in;/ of this hind, where private rights are to be affected by the 
appropriation of private property to public use, all the essential forms of the law 
must be rigidly observed, or the proceedings will not be sustained. New Orleans v. 
Sohr. 16 La. An*. R.. 393. 

Where an application is made to commissioners of highways for laying out 
a road. etc.. they may refuse to act and should do so unless, in their opinion, the 
application presented to them is regular and in accordance with the requirements 
of the law. If they err in their refusal to act, the remedy by mandamus is at hand. 
Warnickr. Orange Co., 13 Wend. R.,432. 

The petitioners must be freeholders of the town where the proceedings are to 
be had. If they reside out of the town, although within three miles of the road, they 
are not lawful petitioners. Warne et al. v. Baker, 35 111. R., 382. 

It is no objection to a petition that more than twelve persons have signed it, 
and where twelve of the number are legal voters and reside within the town, it will 
be no objection because others whose names are upon the petition are not legal 
voters, or are not otherwise qualified. See Carmel v. Judges of Putnam Co., 7 Wend. 
R., 64. 

Tfie commissioners cannot proceed, except upon a petition in writing, 
by the requisite number of freeholders, and an order made by them, laying out a 
road without such petition, would be void. In case of contest as to the legality of 
the road, the petition itself is not evidence that the signers are freeholders. Har- 
rington v. People, 6 Barb. R., 607 ; Williams v. Holmes, 2 Wis. R., 129. 

But where the owners of land release all damages, and no private rights are affect- 
ed, the same strictness in regard t > the petitioners would prubably not be required. 
Marble v. Whitney, 28 N. Y. R. (1 Tiffany), 297. 

The general course of the. road petitioned for is designated by the peti- 
tioners, the particular route by the commissioners, and the latter may make such 
variations as they may think proper, provided the departure is not of such a char- 
acter as to induce the/court to suppose that these officers had wholly disregarded 
the preliminary proceedings of the application. Hallock v. Woolsey, 23 Wend. R., 
328; Ae/sv. Franzcn, 18. Wis. R., 557. 

A highway must be laid out in conformity with the route described in the 
petition, otherwise the doings of the road commissioners will be without authority 
and invalid. Cole v. Town of Canaan, 9 Foster R., 88. The distinctive marks of a 
highway as petitioned for, are the points of beginning and termination ; the peti- 
tion must be ob erved in this respect in laying out the road. A highway, laid from 
one terminus described in the petition, about half way to the other, cannot be said 
to be the highway petitioned for. Ford v. Banbury, 44 N. H. R., 388. 

The point of commencement named intfie jjetition cannot be changed by the 
commissioners. They can only grant or reject the prayer of the petition in this 
regard. Shinkle v. Mag ill, 58 111. R., 422. The petition should describe the points of 
commencement and termination with certainty. Johns v. Marion Co., 4 Oregon 
R., 46. 

The bounds in a petition for a highway from a certain place " to a 
point near the dwelling house of B." was deemed sufficiently definite in fixing 
the point of termination. Weslport v. County Commissioners, 9 Allen R. (Mass.), 203. 

Equity wilt 7i ot permit a road to be established through a township simply 
for the purpose of procur ng a road for a part of the distance, for it would operate 
unjustly, if not as a fraud upon property holders. Green et al. v. Green, 34 111. R., 32. 

Where commissioners were appointed by an act of the legi.slatureto lay out 
a road on the most direct and eligible route, commencing at or near a cert iin 
village, and the road was laid out, commencing at a distance of sixty rods from the 
village, in a field where there was no road with Avhich it could connect, and the 
route, instead of being the most direct and eligible, was, as expressed by the court, 
strikingly injudicious; yet, notwithstanding these facts the court awarded a per- 
emptory mandamus to the commissioners of highways of the town, to proceed forth- 
with to open and work the road as laid out by the State commissioners It was held 
that the court would not collaterally review the doings of the commissioners, and 
hold as void the final determination made by them, in the exercise of their discre- 
tion or judgment. That the proper way of taking advantage of an error of this 
kind would be by a certiorari or writ of error, if no other mode of appeal is given 
by statute. People v. Collins, 19 Wend. R., 56. 

A petition for- a change in the location of certain parts of a road must set 
forth particularly the parts proposed to be changed. Chartier's Road, 48 Penn. State 
R„ 314. 

JL petition to alter a town line road between two points specified, so as to 
"avoid that swampy land, and lay the said highway either northward or south- 



126 ROADS AND BRIDGES. [DIV. IT. 

Proof of twenty days before any action shall be had in reference to such 

posting. petition. The posting of any notice required by this act may 

be proved by the affidavit of the person posting the same, or 

by other legal evidence. (1) 

Sec. 31. Whenever the Commissioners of Highways shall 
Time of meet- receive any such petition with the proof of the posting of 
rofdto e be mme copies, as in the next preceding section specified, they shall fix 
fixed. upon a time when and [place] where they will meet to examine 

the route of such road, and to hear reasons for or against the 

ward, that is, either through town 17 or town 16, at the discretion of the commis- 
sioners, on good and dry land," designates with sufficient certainty trie alteration 
asked for, to give the commissioners jurisdiction to proceed. Nets v. Franzen, 18 
Wis. R., 587. 

(1) The provision requiring that a copy of the petition shall be posted, would 
seem to include the names of the petitioners subscribed thereto. It would seem also 
to be proper that a brief notice of intention to present the petition should appear in 
connection with the copy of the petition. To this end, the following may be in- 
serted at the head of each copy posted : 

" Notice is hereby given that the following is a copy of a petition which 
will be presented to the commissioners of highways after the expiration 
of twenty days from this day of , 18 — ." 

The date affixed to the foregoing notice should be the date on which the copies 
are posted. 

Form of Affidavit of posting copies of Road Petition. 
State of Illinois, 

County, 

J. N., being duly sworn, doth depose and say that he did on the _ 

day of , 18 — , post up three copies of the within petition in the 

vicinity of the road [or proposed road] described in said petition as fol- 
lows : [here state the place of posting,] in the town of , in said 

county, it being three of the most public places in said town. 

J. N. 
Subscribed and sworn to before me, ) 

this day of , A. D. 18—. J 

S. W., Justice of the Peace. 

What is meant by "other legal evidence" of posting notices, is the 
evidence of any person who knows the fact that the same were posted, whether they 
took part in the posting or not. It may be the evidence of a person who was pres- 
ent and saw the notices posted. In which case the foregoing form of affidavit can 
be varied to suit the circumstances, by averring that the " affiant was present and 

saw copies of the within petition posted by (state by whom), on the day of , 

18—, at (stating the places where;." The affidavit of posting should be endorsed 
on the petition. 

A copy of the petition must be posted up twenty days before any action 
can be had in reference to it. The commissioners should be satisfied that the 
law has been complied with in this regard before proceeding. Commissioners v. Har- 
" per. 38 111. R., 104. * 

The commissioners do not acquire jurisdiction to act on a petition unless proper 
notice is given, of which there must be due proof. Willis v. Smith, 14 N. Y. Sup. 
Court R., 17. 

To prove that copies of the petition have been duly posted, it is not the 
proper course for the commissioners in determining that fact, to call as witnesses the 
parties who posted them; their rxparte affidavits attached to the petition is pre- 
scribed as sufficient. Wells et al. v. Hicks, 27 111. R., 343. In the absence of such affi- 
davit, however, the commissioners are authorized to receive other legal evidence. 
If other legal evidence is resorted to it should no doubt properly be embodied in 
an affidavit and be endorsed on, or accompanying the petition. 

Where the law requires a notice to be posted, in one of the most public places 
of the town, and the place of posting seems to be a public place, the court will pre- 
sume, in the absence of any showing to the contrary, that the place of posting was 
one of the most public places in the town. Tcick v. Commissioners of Carver Co., 11 
Minn. R., 292. 



DIV. il] altering, widening, vacating and laying out. 127 

altering, widening, vacating or laying out the same, which 
mooting shall be within twenty days after the expiration of the Twenty days, 
twenty days required for the posting of the copies of the peti- 
tion in the next preceding section, and they shall give at least 
ten days' notice of the time and place of such meeting, by Ten days' 

ing up notices in three of the most public places in the 1101 
township, in the vicinity of the road to be widened, altered or Posting notice, 
vacated. (1) 

(1) Form of Notice of Commissioners for time and place fixed for exam- 
ination of route, and hearing reasons for or against Road. 

HIGHWAY NOTICE. 

A petition having- been presented to the commissioners of highways of 

the town of , in the county of , to lay out a new road [or as 

the case mag be,] upon the followiug described route, to wit: [here de- 
scribe the road as set forth in the petition.] The said commissioners do 

hereby give notice that they have fixed upon the day of , 

18 — , at "the hour of o'clock M., at the house of J. D., in said 

town, as the time and place they will meet to examine the route of such 
road, and to hear reasons for or against the laying out of the same [or as 
the case mag be,] when and where all persons interested can be heard. 

Dated at , this day of , 18—. 

C. H., ) Commissioners 

W.K., [ of 

C. L. ) Highways. 

Notice must be given of the meeting of the commissioners, and the want 
of it will vitiate their proceedings. This is essential to their jurisdiction. What is 
said to the contrary in Wells v. Hicks. 27 111. R., 345, is to be regarded as obiter dictum, 
and not binding as authority in the case. Commissioners v. Harper, 38 111. R., 104. 

The requirements of the statute in regard to the petition, notices, and the 
survey of the road and order of the commissioners, must be complied with, and 
where none of these facts were shown, and the road had never been opened or used, 
or regarded by road officers as a highway, a mandamus to show cause why damages 
should not be allowed to a party through whose land a road was claimed to have 
been laid our, was refused. In such case the board of auditors have no authority to 
the proceedings in laying out the road, except to see that they were not void 
for w nt of jurisdiction. For this purpose, it seems, they might rev.ew the proceed- 
ings. People v. Town Board of Lagrange, 2 Mich. R., 187 ; Austin v. Allen, 6 Wis. R., 
134: B'ibbx. Carver, 7 Id., 124; Teick v. Commissioners of Carver Co., 11 Minn. R., 292. 

Notice by 2>ostxng is for the benefit of persons affected by the location of the 
road, as owners of the land, and is termed constructive notice.' 'it is held that notice, 
actual or constructive, to the owner of land, of proceedings to lay out a public way 
across it. is indispensable, whether the statute provides for such notice or not, and 
where the law requires personal service, notice of proceedings to a vendor who sells 
the land while the proceedings are pending, is not notice to the vendee. Curran v. 
Stmttuck, 21 Cal. K.. 427 ; Willis v. Smith, 14 N. Y. Sup. Court R., 17. 

The notice given by the commissioners before laving out a highway must, 
with reasonable strictness, comply with the language of the statute, and be suffi- 
cient to inform all persons interested of the time and place of meeting. A notice 
that they will meet at a certain tims and place, "to take into consideration the peti- 
tion of I). < ..and others for laying out a highway," does not complv with the statute, 
and a road laid out under such a notice would not be legal. Babb v. Carver, 7 Wis. 
R.. 124. 

Tli>- commissioners are required to meet within twenty days after the ex- 
piration of the twenty days provided, to hear reasons for and against the objects 
sought by the petition. This requirement is not merely directory, but is peremp- 
tory: such a meeting of the commissioners within that time, is essential to the valid- 
ity of their action. A meeting twenty-three days after the expiration of the 
twenty daj s will not satisfy the requirements of this statute. Commissioners v. Ilar- 
Ul. R.. 104. 

In laying out highways, the commissioners as well as the supervisors, 
beiore whom the matter is brought on appeal, exercise special and limited jurisdic- 
tion, and although it may be presumed till the contrary appear, that thev have pro- 
ceeded legally, yet their acts may be impeached by showing that thev have ex- 
ceeded their powers. 3 Hill R., 458. 



128 ROADS AND BRIDGES. [dTV. II. 

Sec. 32. The Commissioners may, by public announcement, 
Adjourn and by the posting of a notice at the time and place named for 

meeting. ^ e g rgt Inee ting, adjourn the meeting from time to time, but 

not for a longer period than twenty days in all; and shall, & 
the first or such adjourned meeting, within said twenty days, 
Decision. decide and publicly announce whether they will grant or refuse 
indorsement tne prayer of the petition, and shall indorse upon or annex to the 
on petition. petition a brief memorandum of such decision, to be signed by 
Revocation of the Commissioners. Such decision shall be subject to revoea- 
decision. ^ on ^ - n cage t | le p ra y er f the petition is granted, in the man- 

ner hereinafter provided. In case the Commissioners refuse to 
Refusal to grant the prayer of the petition, they shall, within ten days 
grant petition, thereafter, file the same, so indorsed or with such decision 
annexed thereto, in the office of the Town Clerk. (1) 

Laying out of a highway upon considerations other than the public 

good is held to be illegal. Thus, where a road was laid out by the commissioners, 
both because they thought the public good required it, and because G. and F. stated 
to them that if they would lay the road the petitioners would make it without any 
expense to the town; both of which were taken into consideration by the commis- 
sioners in deciding to lay the road. Held, that a laying out upon such inducements 
would be cleany illegal. Gurnscy v. Edwards. 6 Foster R , -2-2-i. 

The commissioners of highways hare nn jurisdiction ia the matter of laying 
out a highway which is not to be wholly within their town, unless under some ex- 
press provisi n of law. as when the road is to be on the town line, and then they 
act in coi junction with the commissioners of the adjoining town. See ease of 
Griffin's petition, 7 Foster (X. H.) R., 343. 

Laying out and opening of roads is not an exercise >f judicial powers; 
yet the presumption ordinarily is that the antecedent proceedings have been regu- 
I r : which presumption, however, is subject to be rebutted. IXealy v. Brown, 1 Gilm. 
R., 10. 

But it is held in New Hampshire that the laying out of highways partakes of the 
character of judicial proceedings, and that such act is a j udicial act. State v. Rich- 
mond, 6 Foster R.. 232. 

(1) Form of Notice of adjournment of Road Meeting. 

HIGHWAY NOTICE. 

Public notice is hereby given that the meeting of the commissioners of 
highways of the town of , in the county of and State of Illi- 
nois, to" examine the route of a proposed public road and to hear reasons 
for or against laying out the same [or, as the case maybe], according to 
the petition of J. S., L. M. and others, as follows: [here describe the 
route] which meeting was to be held, pursuant to public notice at [state 

place] on the day of A. D. 18 — , at — o'clock, — M., is hereby 

adjourned until the ; — day of , A. D. 18—, at— o'clock— M., 

at [state the place] in said town. 

Dated this day of A. D. 18—. 

R. M., ) Commissioners 
S. P., \ of 

H. W., ) Highways. 

Form of Memorandum of Decision granting or refusing Prayer of 

Petition. 
We hereby grant [or refuse] the prayer of the within [or annexed] pe- 
tition, this day of , A. D. 18 — . 

R. M., ) Commissioners 
J. S., [ of 

E. B., ) Highways. 



diw il] alteeing, widening, vacating and laying out. 129 

. 33. If the petition is simply for the vacation of a road. i„ case ofva- 
and the Commissioners of Highways, or a majority of them, (;atlonof roa(| - 
shall, at such meeting, decide that the prayer of the petitioners 
should be granted, they shall order such road to be vacated — Order to vacate 
a copy of which order, together with the petition, shall be by 
them filed with the Town Clerk, such order to be so filed within Ffled with 

_ ... _ i-i-- ,-t\ town clerk. 

ten days alter the date ot such decision. (1) 

. 34. If such petition is for the establishment of a new Laying out, 
road, or the alteration or widening of an existing road, and the widening r road. 
Commissioners of Highways, or a majority of them, shall be 
of the opinion that the prayer of the petitioners should be 
granted, they shall cause a survey and plat of such road to be Sui- veyand 
made by a competent surveyor, who shall report such survey 

The commissioners nmst meet within the time prescribed by law, to hear 
for or against the road, or their action thereafter will be set aside in a direct 
proceeding for that purpose. Shirikle v. MagiU, 5s 111. R., 422. 

The commissioners should tiU be present when any action is had on a 
petition, but a majority may act, and decide all questions. If two only are present 
and act. all should have notice of the meeting. Babcock v. Lamb, 1 Cowen R., 238; 
Commi. s >ners v. Snoan, 65 Barb. R., 210. 

Where the commissioners of highways met on the day named in the notice, and 
went upon and viewed the line of the proposed road, and on the same day an- 
nounced publicly that they would not order the road to be established, which decis- 
ion was not committed to writing until two days alterward, when it was fi cd in the 
office of the town clerk, Held, that this was a substantial compliance with the road 
law. (Sec. 32.) Anderson v. Wood et al., 80 111. R., 15. • 

(1) Form of Order of Commissioners Vacating Road. 
State of Illinois, 

County, 

Town of . . 



Whereas, on the clay of , A. D. 18 — , we, the commis- 
sioners of highways of said town, received a petition, in writing-, of [here 
state the names of the petitioners] praying for the vacating of a road 
therein and hereinafter described, said petitioners being freeholders resid- 
ing within three miles of said road; and it appearing from legal evidence 
that a copy of said petition had been posted up in three of the most pub- 
lic places in said town, in the vicinity of said road, not less than twenty 

dav- before the day of A. D. 18 — , we did, upon said 

day of , A. D. 18— fix upon the day of , A. D. 18— 

as the time when, and , as the place where we, the said commis- 
sioners of highways, would meet to examine the route of said road, and 
hear reasons for or against the vacating the same, and did give ten days' 
notice of the time and place of such meeting by posting up notices thereof 
in three of the most public places in said town, in the vicinity of the said 
road; and having met at the time and place appointed, we personally 
axamined the route of said road, to wit: [here describe the road,] and 
having heard such reasons as were oifered for and against the vacating 
of said road, and being of the opinion that such vacating was necessary 
and proper, and that the public interest would be promoted thereby, we 
decided that the prayer of said petitioners should be granted. 

It is, therefore, hereby ordered and determined, and we do hereby 
order and determine, that said road be vacated and discontinued. 

In witness whereof, we, the said commissioners, have hereunto set our 

hands, this day of A. D. 18 — . 

S. H., ) Commissioners 
A. T., [ of 

9 E. B., ) Highways. 



130 ROADS AXD BRIDGES. [dIY. II. 

courses and and plat to said Commissioners, giving the courses and dis- 

distanees. tances, and specifying the land over which said road is to pass 

— in which they may make such changes between the termini 

of the road described in the petition as the convenience and 

interest of the public, in their judgment, may require. (1) 

Sec. 35. They shall [al]so before they order any road to 

be established, altered, widened or vacated, ascertain, as here- 

Damagestobe inafter provided, the ao-orreorate amount of damages which the 

owner or owners of land over which the road is to pass shall 

be entitled to, by reason of the location, alteration or vacation 

Proviso— of such road : Provided, "however, that in case an appeal is 

taken from the assessment of damages before the Justice of the 

Peace, the Commissioners may in their discretion, make an 

order before or order laying out, widening, altering or vacating such road, 

detTrmmed. 15 either before or after such appeal is determined, in the manner 

hereinafter provided. 

(1) Form of Surveyor s Report of Survey of Road. 

To the Commissioners of Highwavs of the town of , in the county 

of : 

The undersigned having been employed by you to make a survey of a 
road beginning, etc., [set forth the road as asked for in the petition.] 
■ would report that the following is a correct survey thereof, as made by me 
under your directions, tovrit: [here set forth the survey, the course, dis- 
tance, etc., as required hy laic,] and that herewith is a correct plat of said 
road, according to said survey. 

Dated this day of — , A. D. 18—. 

G. R„ 

Surveyor. 

Form of Surveyor' s Report of survey of Alteration of Road. 

To the Commissioner of Highways of the town of . in the county 

of -: 

The undersigned having been employed by you to make a survey ©f the 
alterations of a road beginning, etc., [here set forth the road and altera- 
tion as asked for in the petition,] would report that the following is a cor- 
rect survey thereof as made by me under your direction, showing the line 
of alteration made, to wit: [here set forth the survey of the line of alter- 
ation, the corners, distances, etc., as required by lau;. noting briefly the 
points in the old road from which the alteration is made,] said that 
herewith is a correct plat of said alteration, according to said survey, 
showing as well said alteration as the route of the old -road. 

Dated this day of , A. D. 18—. 

G. R., 

Surveyor. 

In the alteration of a road it is proner that the plat should show the loca- 
tion of the old road as well as the line of the alteration. In some States this rule is 
imperative. State v. Lippencott. 1 Dutch R. (N. J.). 434. 

The mere survey and platting of a road by a surveyor under the 
direction of hisrhwav commissioners,' does not have the effect to es'abli^h ir as a 
highway : such a proceeding leaves the proof of the existence of the road precisely 
as it was before. It has. however, the effect to step the public from claiming tha: 
the road was upon a different line from the survey. Gentleman v. Souk, 32 II!. 
R 272 

It is not essential to the validity of an order of commissioners of high- 
wavs. or of the three supervisors who may act on an appeal from such commis- 



DIV. IT.] ALTERING, WIDENING, VACATING AND LAYING OUT. 131 

Sec. 36. The damages sustained by the owner or owners Damages may 
of the land, by reason of the establishment, alteration, widen- upon rccd 
ing or vacation of any road, may be agreed upon by the 
owners of such lands, if competent to contract, and the Com- 
missioners of Highways, or they may be released by such 
owners — in which case the agreement or release shall be in Agreement in 
writing, and shall be filed and recorded with the copy of the wn mg " 
order establishing or altering such road, in the Town Clerk's Filed in town 

o o ' m cleric s oliicc 

office, and shall be a perpetual bar against such owners, their 
grantees and assigns, for all further claims for such dam- 
ages. (1) 

skv ers. establishing a public highway, that the surveyor's plat, which the law re- 
quires shall appear, from such order, to have been signed by the surveyor. Towcret 
ul, v. PUsHck, 55 111. R., 15. 

(1) Form of Agreement as to Damages in laying out Road. 

Whereas, a road was duly laid out on the day of , A. D. 

18 — , by the commissioners of highways of the town of , in the 

county of , on the application of the requisite number of freeholders, 

residing- within three miles of said road, as follows: commencing, etc., 
[insert description of the road as in the order,] which road passes through 
the land of P. F., being known and described as follows: \}iere describe 
the land with reasonable certainty.'] Now, therefore, it is hereby agreed be- 
tween the said commissioners and the said P. F., that the damages sus- 
tained by the said P. F., by reason of the laying out and opening said 
road upon Ins land, hereinbefore described, be liquidated and agreed up- 
on at dollars. 

In witness whereof, the said commissioners and the said P. F. have 

hereunto subscribed their names the day of , A. D. 18 — . 

N. W.. ) Commissioners 
0. S., \ of 

W. H., ) Highways. 
P. F. 

Form of Release of Damages by owner of Land. 

Wnereas, a road having been duly laid out on the day of , 

18 — , by the commissioners of highways of the town of , in the 

county of , on the application of the requisite number of freeholders, 

residing within three miles of said road, as follows: [insert description of 
the route as set forth in the order laying it out,] which road passes through 
certain lands owned by me, being known as follows: [here insert descrip- 
tion of lands ] Now, therefore, know all men by these presents, that J, 
A. G., for value received, do hereby release all claims to damages sus- 
tained by me by reason of laying out and opening said road through 
my said lands above described. 

In witness whereof, I have hereunto set my hand and seal, this 

day of -, A. D. 18—. 

A. G. [seal.] 

Concerning the talcing of private property for public use, the Constitu- 
tion of Illinois, Art. 2, Sec. 13, declares that "Private property shall not be taken 
or damaged for public use, without just compensation." Although the property may 
not be actually ta.cn. yet if it is damaged by the laying out and construction of the 
road, the constitution requires that compensation should he made. In common 
speech, the compensation awarded iorti-e property taken is called the damages. 
The public is excluded from opening or using a road until the damages are assessed 
or agreed upon, or released in writing. JS'ortonv. Studley, 17 111. R., 55(5. 

I)i a la^er case it is held that the commissioners of highways cannot lawfully pro- 



132 



ROADS AND BRIDGES. DIV. II.] 



Sec. 37. In case such damages are not released or agreed 

a'es not agreed U P on as * n ^ e P rece di n g section specified, the Commissioners 

upon. e of Highways shall within twenty (20) days from the date of 

the meeting at which it was decided to grant the prayer of 

commissi? ^ e P et ^^ on ? make a certificate that they are about" to estab- 

ers. a lish, widen, vacate or alter a public road, describing such road, 

vacation, widening or alteration, and the land over or on which 

such road is to be established, altered, widened or vacated, and 

naming the owners of such lands, if known, and if not known 

ceed to open a road until the damages assessed to the owners of the lands taken 
have either been released, or they have been paid their damages, or that it be 
shown that the^e is money under the control of the commissioners with which to 
tender or pay the da nages assessed. Hall et al. v. The People ex rel., etc., 57 111. R., 307. 
There can be no entrance upon or possession of land for public use, until the com- 
pensation for land damaged, aud land taken, is paid. T/ie People v. McRoberts, 62 
111. R., 38. 

Damages for opening a road are a personal claim assessed in favor of the 
owner at th • time of the injury, and do not lun with the land. Tenbrooke v. Johke. 
77 Penn. St. R., R92. 

It has been held in New York that an act of the legislature, givirg to commis- 
sioners of highways the power to lay out new roads trough wild or unimproved 
lands, without the consent of the owner, is unconstitutional and void, if no com- 
pensation is required to be made to such owner. Wallace v. Earlenowjski, 19 Joarb. 
R., 118. Gould v. Glass, id., 179. 

The commissioners, award should show that the question of damages was 
taken into account in regard to all the property taken, either by compensation in 
monev. or by est mate of the advantages as given in the foregoing form of assess- 
ment of damages. 8 Minn. R,, 491 ; 10 id., 82. 

In ease a highway is laid out, and ihe proceedings fail to show that dam- 
ages were disposed of, it would probably be presumed, until the contrary w as 
shown, that the advantages were considered equal to the damages. But before the 
road could be opene. in such case, the owner could no doubt insist on his right to 
attempt to agree with the commissioners as to the damages ; and on failure to do so, 
he c uld probably insist on a specific determination and award by a jury, as pro- 
vided by the statute. See Detroit v. County of Somerset, 52 Maine R., 210; Bouiand v. 
Commissioners, 49 id., 14-!. 

A. party to ivhoin damages have been aivarded for the laying out of a high- 
way through his land, has a right of action a.4ainscthe t wn therefor. A mandamus 
will also lie to compel the town to audit his claim. Van Yleit ex rel., etc.. v. Wilson, 
17 Wis R., 687. But it is doubtful if an action would lie in the absence of an 
award, unless it appeared that there had been an attempt on the part or the owner 
to agree with the commissioners on the damages. Lincoln v. Colusa County, 28 Cal. 
R., 662. 

The right of iaking private property for public use, as for a highway, is called the 
right u "eminent domain, and maybe exercised by the legislative power at all times, 
if just compensation is made to the owner. The* aid of a jury, when compensation 
is to be made by the State, is not necessary under the constitution of Illinois. The 
instrumentality of CDmmissioners is proper. Johnson y.Joliet and Chicago E. E. Co., 
23 111. R., 202. 

The law imperatively requires the commissioners to adjust the ques- 
tion of damages to the owner of the land, before the road shall be opened or worked 
or used. It does not require th ■ owner to be present and claim damages, to entitle 
him to compensation. It is the mutual duty of the commissioners and the owner to 
endeavor first to agree as to tre damages. If they cannot agree, it is the duty of the 
commissioners to have a jury impaneled to assess the damages at what may be just 
and right. The case of laylor v. Marcy, 25 111. R.. 518, on this subject is moditied. 
An attempt to open a road in the absence of an adjustment of the question of dam- 
ages with the owner of improved and cultivated lands upon which the road is 
located, will be restrained by a court of chancery. Commissioners cf Highu-ays v. 
Durham. 43 111. R., 86. 

It is held in New Hampshire, that the doings of selectmen in laying out highways 
cannot be supported, unless it appear that due recompense was allowed to t ie 
owners of lands through which such highway was laid out, and that the owners had 
an opportunitv to be lieard npon the subject of damages. Pritchard v. Atkins, 3 N. H. 
R., 335. See also Cur-ran. v. Shattuck, 24 Cal. R., 427. 

When land is alleged to be injured by the location and opening of a highway 
through it, the measure of damages will be the difference between its market value, 
at the time, with the highway, and its market value without the highway. Sidner 
v. Essex, 22 Ind. R, 207. 



MV. IT.] ALTERING, WIDRNING, VACATING AND LAYING OUT. 133 

stating the fact, and asking for a jury to assess the damages of 
such owners, and shall present such certificate to some Justice 
of the Peace of the county, who shall summon a jury of twelve Jury of twelve 

• • • i to assess 

(12) persons, having the qualifications ot jurors, the same as damages, 
other juries are summoned in civil actions before Justices of 
the Peace, to appear before such Justice of the Peace at a 
time to be fixed by him, within ten days from the time such 
certificate was presented to him, to assess such damages. (1) 

Where a road is ordered to be laid out through lands belonging to an estate, 
an assessment of the damages to the heirs of such an estate, is proper and legal. In. 
such case, separate damage cannot be assessed to the widow on account of an un- 
assigned aower interest. An adjustment of the equities between the fee and the 
contingent right of dower, must be left to the widow and the heirs. Tedernier et al. 
v. Aspinwall et al., 43 111. R., 401. 

After thr owner of land has accepted the damages awarded to him for 
opening a highway on his land, it is too late for him or his grantee to claim that the 
proceedings lor opening it are invalid. Town v. Town of Backberry, 29 111. R., 137. 

Where a highway is laid out along the line of a farm, taking no portion 
of the land of the owner, but subjecting him to the expense of maintaining the 
whole of the fence, the expense of the half of which only was formerly borne by 
him. such owner, under the existing highway act, is not entitled to compensation ; 
and although damages are allowed to him, the supervisors of the county have no 
authoritv to cause the same to be collected. People v. Sups. Oneida Co., 19 Wend. R., 
12d. 

The right of the owner to the damages assessed becomes fixed and vested as 
soon as assessed; and it is held that such right cannot be divested by a subsequent 
repeal of the statute under which the damages were assessed ; that the public use of 
a highway being but an easement, subject to which the owner of the land over 
which it passes retains his title, there is always a contingency by which the owner 
may return into full possession of the land on its being no longer required by the 
public. When this contingent event will happen is ordinarily unknown and is 
wholly immaterial, as regards the rights of the landholder, whether the public re- 
tains the use of the land for a century, or for a year, or but for a single day, cannot 
affect his title to a compensation. The People ex rel. Fountain and others v. Supervisors 
Winchester Co.. 4 Barb. R., 276. 

Held also in Massachusetts, that where damages upon laying out a road have been 
assessed or awarded to an individual, the town would be liable for the amounfrthere- 
of, although the road had been discontinue i before payment, and in fact never 
entered upon ; that the owner had a vested right to such damages, and was entitled 
to a writ ot mandamus to compel payment. Harrington v. Berkshire, 22 Pick. R., 263. 

The fee of the land in the highway, whether it be laid out by law or granted 
by the owner for a highway, remains in the owner, and he may maintain an action 
of trespass for cutting timber therein, or for any exclusive appropriation of the soil. 
He is entitled to the same remedies for an injury to his residuary interest that he 
would be entitled to if it was entire and absolute. Babcockv. Lamb, 1 CowenR., 238; 
Gidney v. Earle, 12 Wend. R , 98 ; 3 Hill R., 567. But it is otherwise in case of streets 
dedicated by a town plat duly recorded. Hunter v. Middleton, 13 111. R., 50. 

As a public highway is a mere easement and the seizing and right to convey 
still continue in the owner of the land over which it is laid out, it is no breach of 
the covenant of seizin an*l power to convey contained in the deed, that part of 
the land conveyed was a highway and used as such. Whitbeek v. Cook, 15 Johns. 
R.. 483. 

The new constitution declares, Art. 2. ? 13, that "the fee of land taken for rail- 
road tracks, without consent of the owner's thereof, shall remain in such owners, 
subject to the use tor which it is taken." 

(1) Form of Commissioners'' Certificate and Application for a Jury. 
State of Illinois, 

County, 

To— 7-7—, Esq., a Justice of the Peace of said County: 

This is to certify that we, the commissioners of highways of the town 

of — ■ , are about to lay out [or as the case may be'] a public road 

described as follows, to wit: Beginning [describe the route as set forth in the 
petition,] which said road passes over, and is supposed to damage the lands 
described and owned as follows, to wit: [here describe the lands and state 
the names of owners, if known; if owners are unknown, or non residents, 
state the facts.] That we have not been able to agree with [state names 



134 



KOADS AND BRIDGES. [dIV. II. 



Sec. 38. The Commissioners of Highways, shall also notify 

S^fVppiica-" each and ever y owner of land— if known and a resident of the 

tion for jury, county — whose damages are to be assessed, that they will apply 

to some Justice of the Peace of the county (giving the time 

when and the place where) to have a jury impaneled to assess 

such damages. (1) 

Sec. 39. Upon the presentation of such certificate by the 

mo r ned°' VSum ' Comm ^ sioners of Hi g nwa J s > tne Justices of the Peace shall 
forthwith issue a venire directed to any constable of the county 

Qualification, to summons twelve (12) persons having the qualifications of 
jurors to appear at such time and place as may be designated 
for the trial of such cause, whose competency shall be deter- 
mined the same as in other civil cases before Justices of the 
Peace. (2) 

of owners disagreeing with the commissioners,} owners, as aforesaid, as 
to the damages sustained by them by reason of the proposed laying out 
[or as the case mag be,] of said road over their lands, nor have said dam- 
ages been by them released. We, therefore, ask for a jury to assess the 
damages of said owners. 

Given under our hands this day of , A. D., 18 — . 

A. B., ) Commissioners 
C. D., [ of 

E. F., ) Highways. 

(1) Form of Notice to Land Owners of Application for Jurg to assess 

Damages. 
State of Illinois, { 

County, j 

To E*. B. : 

This is to notify you that on the day of , A. D. 18 — , at — 

o'clock — M., we, the undersigned commissioners of highways of the town 

of — ; , in said county, will apply to L. M., Esq., a justice of the peace 

of said county, at , to have a jury empaneled to assess the damages 

to which you may be entitled by reason of the laying out of a public road 
[or as the case mag be] over certain land by you owned, as by us deter- 
mined. 

Given under our hands, this day of A. D. 18 — . 

A„B., ) Commissioners 
C.*D., [ of 

E. F., ) Highways. 

Commissioners of hightvays do not acquire jurisdiction to make an order 
laying out a road until notice in writing has been given to owners of land 
through which the road is to run, as the law provides, and the recital in their order 
that such notice has been given, is not of itself evidence that the required notice has 
been given. Willis v. Smith, 14 N. Y. Sup. Ct. R. 17 ; see, also, Skinner v. Lake View 
Av. Co., 57 111. R., 151. 

(2) Form of Venire for Jurg to assess Damages. 
State of Illinois, \ 

County, \ ss ' 

The People of the State of Illinois, to any Constable of said County, 
Greeting: 

We command you to summon twelve lawful men of your county, having 

the qualification of jurors, to appear before me at , on the 

day of , 18—, at— o'clock— M., who are not of kin to [name of 



DIV. II.] ALTERING, WIDENING, VACATING AND LAYING OUT. 135 

Sec. 40. At the trial of the case either party shall have challenge of 
the right of challenge as in other cases; and any deficiency in jury - 
the Dumber of jurors from whatever cause, shall be supplied 
by summoning other persons residing in the township, or in an 
adjoining township, in the same manner as in a civil case. (1) 
Such Justice of the Peace shall notify the owners of such Notice to own- 
land mentioned in such certificate to appear at the same time a?dprove ar 
before such Justice to prove their damages. (2) damages. 

Sec. 41. In case it shall appear either from the certificate Notice to un- 
of the Commissioners, the affidavit of any person, or the return 
of any officer to whom the notice may be delivered for service 
that there are non-resident or unknown owner or owners who 
cannot be found and served within the county, such Justice 
shall also cause notice to be posted in three of the most public posting notice. 
places in the vicinity of such proposed road or alteration, at 
least six days before the time fixed for the appearance of such 
jury, stating when such jury is to be impaneled by him, and 

person whose damages are to he assessed], to make a jury to assess dam- 
ages sustained by said , by reason of laying" out a certain road [or 

as the case may be], and have you then and there the names of the jury 
and this writ. 

Witness my hand, this day of , 18 — . 

John Doe, J. P. 

The Jury will be summoned by the constable and returns made in like 
manner as other juries in civil actions before justices of the peace. 

Concerning the qualification of jurors and mode of proceeding to deter- 
mine competency, see Haines' Treatise ; new Ed. Title, " Op the Jury," 
p. 383. 

(1) Concerning the challenging ef jurors, the general rule in this regard 
governing civil actions before justices of the peace will be observed. The law in 
full on this subject will be found in Haines' Treatise; new Ed. Title, "Of the 
Jury," p. 383. 

It seems that additional jurors, if required, are to be summoned from 
the township where the proceeding is pending, or an adjoining township. 

(2) Form of Justice's Notice to Land Owner to prove Damages by 

Laying out of Road, etc. 
State of Illinois, 

County. 

To Mr. J. L.: 

Whereas, the commissioners of highways of the town of , have 

presented to me a certificate stating that they are about to lay out a pub- 
lic road, [or as the case may be], described as follows: [here describe the 
road as petitioned for], and said commissioners ask for a jury to assess the 
damages to which the owners of lands may be entitled by reason of the 
laying out of said road over the same [or as the case may be,] in which 
certificate you are named as the owner of certain of said land, to wit: 
[describe the lands.] You are therefore hereby notified to appear before 

me at , on the day of — , A. D. 18 — , at the hour of — o'clock, 

— M., to prove the damages by you sustained in the premises, when a 
jury will be empaneled, by me, to assess the same. 

Given under my hand, this day of , A. D. 18 — . 

A. B., 
Justice of the Peace. 



136 ROADS AND BRIDGES. [DIV. II 

Description of describing the road to. be established, altered, widened, or 

road. vacated as petitioned for, and the lands for which damages are 

to be assessed. (1) 

Sec. 42. The notice to such owners of land may be served 

notice 6 ° f ^y an y constable at least five (5) days before the time of appear- 
ance. If any such owner is an infant, such summons [notice] 

copy to infant, shall be served by delivering a copy to the infant, or its guardian, 
if any, if no guardian, the person with whom he or she resides. 
If any owner is a lunatic or habitual drunkard, having a con- 
servator, or insane, by delivering a copy to his conservator, if 
any ; if any such owner is a married woman, by delivering a 
copy to her. (2) 

(1) The form of notice for posting in case of non-residents, or unknown 
owners, may be the same as that served on resident owners. 

The certificate of the commissioners, affidavit of an individual or return of 
an officer as to non-residents or unknown owners, should properly be endorsed on 
the notice. The following may be the form in each instance : 

Form of Certificate of Commissioners of Highways when Owners of Land 

are Non-residents or Unknown. 
State of Illinois, ) 

County, f ss - 

We, the commissioners of highways of the town of , in said 

county, do certify that L. M., named in the within notice, is a non resi- 
dent [or unknown] owner, and cannot be found and served within said 
county. 

Witness our hands, this day of , 18 — . 

A. B., ) Commissioners 
C. D., [ of 

E. F., ) Highways. 
Form of Affidavit of Person that Owner of Land is Non-resident or 

Unknown. 
State of Illinois, 

County, 

G-. H., being duly sworn, doth depose and say that L. M., named in the 
within notice, is a non-resident [or unknown] owner, and cannot be found 
and served within said county. 

G. H. 
Subscribed and sworn to before me, 

this day of , A. D. 18—. 

S. W., Justice of the Peace. 
Form of Return of Officer when Owner of Land is Non-resident or 

Unknown. 

I return the within notice this — day of , 18 — , not served, 

the within named L. M. being a non-resident [or unknown] owner, and 
cannot be found and served within said county. 

R. S., 

Constable. 

(2) The return of the Constable should be endorsed on the notice as in 
other cases, and should set forth the manner of service. It is proper that the ser- 
vice should be both by reading and leaving a copy, in each instance. The follow- 
ing may be the general form of return : 

Served the within notice, by reading to, and leaving a copy thereof 

with, the within named L. M., the day of , 18 — . 

R. S., 
• Constable. 



DIV. II. ALTERING, WIDENING, VACATING AND LAYING OUT. MM 

SBC. 43. The jury shall appear before and be sworn or oath of jury. 
affirmed by such justioe faithfully and impartially to assess the 
damage of each of the owners specified in such certificate, or 
those of them whose claims are then to be adjusted, according 
to law to the best of their judgment and understanding ; and 
all parties in interest shall be entitled to subpoenas and other Subjoined, 
writs and papers, and the trial shall be conducted as in other M nts ' etc ' 
civil cases. (1) 

Sec. 44. The jury shall hear such lawful evidence touch- conduct of 
ing the question of such damages as may be presented to them ; 
and shall also, on request of a majority of the Road Commis- 
sioners or owners of lands whose damages are to be determined, 
in a body visit and examine the proposed location, alteration, 
widening or vacation of such road, and the lands to be taken 
and affected thereby, and make a written verdict specifying the Trial— verdict, 
amount of damages if any, which each such owner shall recover, 
and return the same to such Justice, to be by him entered on 
his docket in the nature of a judgment, to be paid by such Judgment. 
Commissioners, together with the costs of such suit, in case 
they shall finally determine to establish, alter widen or vacate 
such road ; and the money therefor shall be paid by the town, 
out of the funds in the hands of the Treasurer of the Com- ^™ t a ^ from 
missioners of Highways, raised for road and bridge purposes : paid. 
Provided, That in estimating the damages, the jury may con- Proviso, 
sider the benefits conferred, or may disregard such benefits ; Benefits consid- 
but no benefits enjoyed in common by the owners of surround- ere ' 
ing property shall be considered in estimating damages. (2) 

(1) Form of Oath of Jury for Assessment of Damages. 

You (and each of you) do solemnly swear that you will faithfully and 
impartially assess the damages of each of the owners of land involved in 
the matter now in hearing, according to law, to the best of your judg- 
ment and understanding. 

The compensation for property damaged as well as taken, when not 
made bv the State, must be ascertained by a jury. The People v. McRoberts, 62 111. R. 
38 ; Kiae v. Deftnbaugh, 64 111. R., 291. 

(2) Form of Verdict of Jury assessing Road Damages. 
State of Illinois 



. ' [■ ss. Before A. B., Justice of the Peace. 



VERDICT OF JURY. 

In the matter of the Assessment of Damages consequent upon the laying 
out [or as the case may be] of a road over lands described and owned 
as follows, viz.: 

Description of Land. Owned by 



We, the jury, summoned to assess damages in the above cause, having 
taken the oath required by law, and having heard the evidence presented* 



ROADS AND BRIDGES. [DIV. II. 



Sec. 45. Provided, That when there are several such 

owners the jury may assess the damage's, of one or more or all 

of them at the same time, or they may assess such damages at 

owners may different times or there may be different juries and trials at 

trials. ' different times for different owners if any owner shall demand 

a separate trial; and any such assessment of damages may be 

continued from time to time for good cause, with the like effect 

continuance, as continuances in other cases before Justices of the Peace. 

Sec. 46. Within thirty days after the total amount of 
Thirty d days. on ' damages shall have been ascertained, either by release or 
Fivedays'_ agreement of the parties, or by assessment before a Justice of 
the Peace and a jury, in the manner hereinbefore provided, 
the Commissioners shall hold a meeting to finally determine 
upon the laying out, altering, widening or vacation of such 
road, of which meeting said Commissioners shall give public 
notice, by causing not less than three notices thereof to be 

and having in a body visited and examined [if such is the fact] the loca- 
tion of the said road, the lands to be taken and affected by the proposed 
laying out of the same [or as the case may be], do assess the damages at 
what we deem just and right to each of said claimants, as follows, viz. : 

To the said C. D., the sum of dollars. 

To the said E. F., the sum of dollars [and so on]. 

The above verdict given under our hands, this day of , 

A. D. 18—. 

[Signed by all the jurors.] 

Under Section 13 of Article 3 of the Constitution, the full value of 
land taken for a public highway must be paid in money, alone, disregarding all 
benefits and advantages that may result to that portion* of the owner's land not 
taken, by reason of the establishing of the road, and it is not in the power of the 
legislature to provide otherwise. Where the record of the proceedings by Commis- 
sioners of Highways in laying out a road o\*er a party's land, shows that the jury, 
in assessing the compensation to be paid the owner, undertook to pay him in part 
in benefits to his other land by the construction of the road, ai:d not wholly in 
money, it was held, on application for a certiorari, that the jury transcended their 
powers, and their action was void, and that it was error to refuse the writ. Carpen- 
ter v. Jennings el al., 77 111. R., 250. 

Form of Docket Entry by Justice. 

[Caption as in other cases.] 

18 — , The commissioners of highways of the town of present a 

certificate setting forth that [recite substance of certificate] . 

Venire for jury of twelve persons, issued and delivered to constable 
R. S. 

Notice to owners of land, mentioned in commissioners ' certificate, issued 
and delivered to constable R. S. to serve. It appearing that I. K. and 
0. P., named in said certificate, are non-residents, notice to them was 
caused to be posted, as required by law, six days before the time fixed for 
the appearance of the jury. 

18 — , venire returned, jury appear, and are duly sworn. Having heard 
the evidence presented, the jury retire and return their verdict in writing, 
that [set forth the substance of the verdict]. 

It is therefore considered by the court that [names of owners] each have 
and recover, to be paid by said commissioners of highways, with the 
of suit, the sums following: 

The said L. M., the sum of dollars. 

The said I. K., the sum of dollars, etc. 



MV. II.] ALTERING, WIDENING, VACATING AND LAYING OUT. 139 

posted in public places within the town, at least five days prior 
thereto. (1) 

. 47. In cases where the damages are not wholly released Commissioners 
or agreed upon, and the Commissioners shall be of the opinion proceedings, 
that the damages assessed by the jury are manifestly too high 
and that the payment of the same would be an unreasonable 
burden upon the tax-payers of the town, the Commissioners 
may revoke all proceedings, had upon the petition by a written 
order to that effect ; and such revocation shall have the effect Effect of 
to annul all such proceedings and assessments, releases and revocatlon - 
agreements, in respect to damages growing out of the proceed- 
ings, upon the petition: Provided, Upon the final determina- proviso. No 
tion of the Commissioners of Highways, or the Supervisors, Sg^SMrfone 
upon appeal being determined, and a copy of all such proceed- Th- 
ings being filed in the town clerk's office, no other proceeding 
shall be had by the Commissioners of Highways, nor any 
petition entertained in regard to the same road or petition for 
one year from the date of filing such copies of proceedings. (2) 

Sec. 48. In case the Commissioners shall not revoke such when proceed- 
prior proceedings they shall make an order, to be signed by revoked. 
them declaring such road so altered, widened or laid out a public 
highway, and which order shall contain or have annexed thereto Order. 
a definite description of the line of such road, together with a 

(1) Form of Commissioners' Notice for Final Meeting. 

HIGHWAY NOTICE. 

Xotice is hereby given, that the undersigned, commissioners of high- 
ways of the town of — , in the county of , and State of Illinois, will 

meet on the day of , A. D. 18 — , at o'clock — . M., at [state 

the x>lace of meeting], to finally determine upon the laying out of a road 
[or as the case mag be], described as follows, to-wit: 

Beginning [here describe the road], the petition for which road has been 
heretofore considered and the prayer thereof granted, the route surveyed 
and the total amount of dam ages _ consequent upon the laying out of the 
same [or as the case mag be], having now been ascertained. 

Dated this day of , 18 — . 

j-5*» ) Highway 

L M*' ) Commissioners. 

(2) The order revoking proceedings upon a road petition for the reasons 
mentioned in this section may be indorsed on the petition, and may be in the fol- 
lowing words : 

We, being of opinion that the damages assessed by the jury in the 
within case are manifestly too high, and that the payment of the same 
would be an unreasonable burden upon the tax- payers of the town, do 

hereby revoke all proceeding had upon the within petition, this day 

of , A. D. 18 — . R. P., ) Commissioners 

J. K., [ of 

L. M., ) Higways. 

The prohibition of new proceedings to lay otit, etc., roads within a year, 
does not apply to a case where the decision of the supervisors has been set aside by 
the Circuit Couit on certiorari as illegal. Sholty v. Bale Township, 63 111. R., 209. 



140 ROADS AND BRIDGES. [DIV. IT. 

Filing order plat thereof. The Commissioners shall within ten days from 

Gierk T ° wn tne c l ate °f sucn order, cause the same together with the report 

of the surveyor, the petition and releases or agreements in 

respect to damages, to be deposited and filed in the office of 

the Town Clerk, who shall note upon such order the date of 

Duty of cierk. sucn filing. It shall be the duty of such Clerk, after the time 

Record order. f or appeal to Supervisors has expired, and in the case of such 

appeal, after the same shall have been determined, in case the 

prayer of the petition is granted, to record such order, together 

with the plat of the surveyor, in a proper book to be kept for 

that purpose. (1) 

(1) Form of order Laying out, Altering or Widening Highway where 
Damages are Assessed. 
State of Illinois, ) 

County, >■ ss. 

Town of , ) 

Whereas, on the day of , A. D. 18 — , we, the commissioners 

of highways of said town, received a petition in writing, of [here state the 
names of the petitioners] praying for the laying out [or altering, or widen- 
ing] of a road as therein and hereinafter described, said petitioners being 
freeholders residing within three miles of the said road [or proposed 
road] ; and it appearing from legal evidence that a copy of said petition 
had been posted up in three of the most public places in said town, in the 
vicinity of the road to be laid out! [or as the case may be] not less than ten 

days before the day of , A. D. le — , we did upon said day of 

, A. D. 18 — , fix upon the day of A. D. 18 — , as the time when 

and [here state the place of meeting] as the place where we, the said 

commissioners of highways, would meet to examine the route of said 
road, and to hear reasons for and against the laying out of the same [or 
as the case may be] and gave ten day's notice of the time and place of 
such meeting by posting up notices thereof in three of the most public 
places in said town, in the vicinity of said road [or proposed road] ■ and 
having met at the time and place apppointed [if meeting is adjourned, state 
the facts], and having examined the road [or proposed road] in said peti- 
tion described, and heard such reasons as were ottered for and against the 
laying out of said road [or as the case may be] we were of the opinion that 
the laying out of said road [or as the case may be] was necessaiy and 
proper and that the public interest would be promoted thereby. We, 

therefore, caused a survey and plat of said road to be made on the 

day of , A. D. 18 — , by A. B., a competent surveyor, which plat and 

survey were to us duly reported, and are hereunto appended and made 
a part of this order; and having ascertained the aggregate amount of 
damages to which the owners of the land over which said road was to pass 
were entitled, and said damages having been definitely fixed by [here state 
the method by which the damages were ascertained. If the appeal ivas 
taken from the verdict of a jury and decided before making this order, here 

state the facts], we appointed the day of , A. D. 18 — , (being 

within thirty days after the total amount of damages was ascertained) at 

[state the place of meeting], as the time and place to meet and finally 

determine upon the laying out of said road [or as the case may be], of 
which meeting we gave public notice by causing three notices to be posted hi 
public places in said town not less than five days prior thereto; and hav- 
ing met at the time and place appointed, and the aggregate amount of 
damages on account of the laying out of said road [or as the case may be], 



DIV. II.] ALTEKING, WIDENING, VACATING AND LAYING OUT. Ml 

Sec. 40. In cases where the damages claimed by the land- when damages 
owners for the right of way is released, or is agreed upon agre^Tuoon. 
between the land-owners and Commissioners, the Commis- 
sioners may, at their first meeting or at any adjourned meet- 
to wit: the sum of dollars and cents, appearing to be not more 

than reasonable compensation, and to have been fairly and legally assessed, 
ami the payment thereof not an unreasonable burden upon the taxpayers of 
the town, and having made such changes in the route of said road between 
the termini thereof, upon the survey and plat as reported by the surveyor, 
as in our judgment the convenience and interest of the public required, as 
will fully appear from the description and plat hereinafter contained, it 
was finally determined that the said road be laid out [or as the case may 
be\. It is. therefore, hereby ordered and determined that the said road be 
and is hereby laid out [or as the case may be], as follows, to wit: begin- 
ning [here describe the road], as shown by the plat hereunto annexed, and 

as so laid out [or as the case may be] is declared a public highway 

of feet wide, tha line of said survey being the center of said roacl. 

In witness whereof, we, the said commissioners of highways, have 

hereunto set our hands, this day of , A. D. 18 — . 

J. K., ) Commissioners 
S. P., \ of 

A.. T., ) Highways. 
Form of Order Laying Out, Altering or Widening Highway where Dam- 
ages are released or agreed upon. 
State of Illinois, j 

County, > ss. 

Town of . ) 

Whereas, on the day of , A. D. 18 — , we, the commis- 
sioners of highways of said town, received a petition in writing, of [here 
state the names of- the petitioners] praying for the laying out [or altering 
or widening] of a road as therein and hereinafter described, said peti- 
tioners being freeholders residing within three miles of the said road [or 
proposed road] ; and it appearing from legal evidence that a copy of said 
petition had been posted up in three of the most public places in said 
town, in the vicinity of the road to be laid out [or as the case may be] not 

less than ten days before the day of , A. D. 18 — , we did, 

upon said day of , A. D. 18 — , fix upon the day of 

, A. D. 18 — , as the time when, and as the place where we, the 

said commissioners of highways, would meet to examine the route of said 
road, and to hear reasons for and against the laying out of the same [or 
as the case may be,] and give ten days' notice of the time and place of 
such meeting by posting up notices thereof in three of the most public 
places in said town, in the vicinity of said road [or proposed road,] and 
having met at the time and place appointed [if meeting is adjourned here 
state the facts,] and having examined the road [or proposed road] in said 
petition described, and heard such reasons as were offered for and against 
the laying out of said road [or as the case may be], we were of the opinion 
that the laying out of said road [or as the case may be] was necessary and 
proper, and that the public interest would be promoted thereby. We, 

therefore, caused a survey and plat of said road to be made on the 

day of , A. D. 18 — , by A. B., a competent surveyor, which plat 

and survey were to us duly reported, and are hereunto appended and 
made a part of this order; and having ascertained the aggregate amount 
of damages to which the owners of the land over which said road was to 
pass were entitled, and said damages having been definitely fixed by [h&re 
state the method by which the damages were ascertained,] and having 
made such changes in the route of said road between the tennini thereof, 



142 EOADS AXD BRIDGES. DIV. II.] 

Examination— in g, examine the route of the road, and cause a survey thereof 
Side?' *° De made, and make their order establishing, altering, widen- 

ing or vacating the road, according to the prayer of the petition, 
and return the same within the time and in the manner speci- 
fied in this act. 

upon the survey and plat as reported by the surveyor, as in our judgment 
the convenience and interest of the public required, as will fully appear 
from the description and plat hereinafter contained, it was finally deter- 
mined that the said road be laid out [or as the case may be]. 

It is, therefore, hereby ordered and determined that the said road be 
and is hereby laid out as follows, to wit: beginning [here describe the road] 
as shown by the plat hereunto annexed, and as so laid out \or as the case 

may be,] is declared a public highway of feet wide, the line of said 

survey being the center of said road. 

In witness whereof, we, the said commissioners of highways, have 

hereunto set our hands, this day of . A. D. 18 — . 

E. M., ) Commissioners 

A. T., [ of 

E. B., ) Highways. 

If the meeting of the commissioners of highways is adjoiirned. that fact should be 
Stated at the proper place in the above form, in the following words: 

"We did adjourn said meeting by public announcement, and by the 
posting of a notice at the time and place named for the first meeting, 

until the day of , A. D. 18—, at o'clock, — M., (the 

same being within twenty days from the time of the first meeting), to the 
[state the place] and having met at the time and place appointed for such 
adjourned meeting." 

It is no valid objection to the form of an or dor establishing a highway that 
it contains lengthly recitals where the facts recited are material to the validity of the 
proceedings. An order without these recitals, or statement of facts produced in a 
collateral proceeding might well be rejected as insufficient in not showing affirma- 
tively that the antecedent or jurisdictional steps had been complied with. The 
order should properly show that the commissioners acquired jurisdiction of the case 
by petition in due form of law, and that they subsequently pursued the requirements 
of the law, in laying out and establishing the road. It will then be received as 
prima facie evidence of the facts it contains. Wells ct al. v. Hicks, 27 111. R., 343; G. 
and C. U. R. R. v. Pond, 22 Id., 399; see Harrington v. Pcop'e, 6 Barb. R.. 607 : Cassidy 
v. ^mith, L3 Minn. R. No particular form of words are necessary in the order, if the 
facts sufficiently appear. Tucker v. Rankin, 15 Barb. R., 471. Where the words used 
were "have and do lay out a highwav," it was held to import that the road was laid 
out at the date of the order. Fowler v. Matt. 19 Wend. R., 204. 

The order should be signed &?/ the commissioners, and to show that 
thev acquired jurisdiction, it should set forth the posting of notices as the law pro- 
vides. Shinkle v. Magill, 58 111. R., 422 ; Wiley v. Town of Brimfield, 59 111. K.. 306. 

The order must be made at a meeting held within the time prescribed by the 
statute, unless there shall be an adjournment, of which there should be a record. If 
the order is made at a meeting held after the time prescribed and there appears no 
record of adjournment, it will be held void on certiorari. Wood v. Commissioners of 
Highways, 62 111. R., 391. 

Where an order of the commissioners declaring a road established did not give 
the exact date of the meeting to hear objections, Held, that a fair construction of 
the order indicated that such meeting was held in apt time. Wiley v. Toivn of Brim- 
field, 59 111. R„ 306. 

The maxim that "that is certain which can be rendered certain," applies to the 
order of the commissioners of highways establishing a public road. When such an 
order failed to show with certainty the precise location of the road, but it Avas des- 
cribed with reasonable certainty in the petition, and particularly described in the 
plat of the survey, which was made part of the order, Held, that the plat was a 
part of the order, which, as well as the petition, might be consulted in determining 
the location of the road. The order was therefore sustained. Clifford v. Town of Eagle. 
35 111. R., 444. The description of a road is sufficiently certain, where, from the 
whole proceedings thereon, there appears no difficulty in locating it. Todemier et al. 
v. AspmwaU et a'., 43 111. R., 401. 

Although a road cannot be located from a mere reference to the calls and 
distances given in the order establishing it ; yet if the court can be satisfied, on call- 



DIV, IT.] ALTERING, WIDENING, VACATING AND LAYING OUT. 143 

Sec. 50. Any person or persona interested in the estab- offer of imiuce- 
lishment, alteration, widening or vacation of any road in this inents - 
State, are hereby authorized to offer inducements to the Com- 
missioners of Highways for the establishment, alteration, 
widening or vacation of any such road, by entering into con- Contract ' 
tract with said Commissioners, conditioned upon such estab- 
lishment, alteration, widening or vacating, to pay money or 
other valuable thing to the town for the benefit of the road and 

ing surveyors and receiving proof on the points of location, that the location of the 
road can be ascertained, the order will be deemed sufficient. Com'rs of highways 
v. The People, 38 111. R., 348. 

It is necessary to the validity of the proceedings in laying out a road, 
that (here should be a report and survey. These, and a plat of the road, must 
accompany the order establishing the road. Town v. Town, of Blackberry, 29 111. 
B,, 137. 

Aft' r all parties in interest have been fully heard, the commissioners may 
proceed and lav out the road at an adjourned meeting without any new notice. 
•rt v. Co. Com'rs. 9 Allen R. (Mass.), 203. 
The acts of a majority of the commissioners, in establishing or vacating 
highways, will be legal and binding, but all should have notice of meetings to con- 
sider any subject. Com'rs of Highways v. Swan, 65 Barb. R., 210. Where an order 
establishing a highway, or an instrument for other purposes, is signed by two of 
the three commissioners, it will be presumed that the third was present and took part 
in the proceedings. Louks v. Woods, 15 111. R., 256 ; Evans, ex rcl., etc., v. James et aL, 
4 Wis. K., 408 ; see ante. sec. 1, par. 2d, p. 37. But one commissioner cannot lawfully 
sign the name of another, and make the instrument valid, unless by his direction 
or; sseiit. Evans ex rel., etc., v. James et al., 4 Wis. R., 408. 

After the location of a highway lias Been determined by the commissioner's, 
the survey is a mere ministerial act, and could probably be conducted without the 
presence of a majority of the commissioners. Marble v. Whitney, 28 N. Y. R. (1 Tif- 
fany >, 297. 

The survey and plat of a public road is evidence of its location, but is not 
conclusive; like field notes of the government surveys, parol evidence may be re- 
ceived to show that the road was actually located differently from the calls in the 
survey Of the road. Hiner v. The People, 34 111. R., 297. 

2V/<" order with the petition should be deposited with the town clerk, who 
should note the time of filing the same. This must be done by the clerk within a 
reasonable time after the fact occurs. But his neglect to mark the correct time of 
filing will not be fatal. A substantial compliance with the requirements of the 
statute is all that is necessary. Town v. Town of Blackberry, 29 111. R., 137. 

Where copies of a petition for laying out a road were duly posted on March 14, 
1870, and the commissioners of highways did not cause a survey of the road to be 
made until June 19, 1871, and on June 24, 1871, they deposited with the town clerk 
an order establishing the road, in which it was recited, that on April 13, 1870, they • 

examined the proposed route and determined to lay out the road. Held, that the 
delay in causing the survev to be made, and in making the order and dep siting it 
with the town clerk, was "unreasonable, and that thereby the commissioners lost 
jurisdiction to establish the road. Commissi overs of Highways?. Barry, 66 111. R., 496. 
The proceeding for the laying out of a road, 'when commenced, should be 
pursued with reasonable dispatch to their completion. No specific time is required 
by the statute within which to file the order of the commissioners establishing the 
road in the office of the town clerk. It should be filed in a leasonable time. A 
fadure in this respect will be an abandonment of the proceeding. Com'rs of High- 
ways v. Barry. 66 111. R., 496. citing Town v. Town of Blackberry, 29 111. R., 137; 
n v. Commissioners of Highways, 54 111. R. 170. 
Upon an application to lay out a road, it is not sufficient to lay out a part 
only: the application can be complied with only by laying out the whole road 
according to tin- prayer thereof. And where a road is regular. y applied for and the 
commis doners decide to layout a part only, any person through whose land the 
road runs as laid, is entitled to take steps to test the validity of their action. People 
Board of SpringweUs, 12 Mich. R.,434. And it is equally objectionable where 
the road is extended beyond the termination mentioned in the petition, as to that 
portion extended. State V. Motly, IS Iowa R., 525. 

An order altering a highway is in law a discontinuance of that part of the 
road not within the bounds of the alteration, without any special order of discon- 
tinuance. Bowley v. Walker, Allen R. (Mass.), 21. 

If the public is to be charged with the abandonment of a road, the proof 
of the act must be accompanied by the further proof that another road has been 
adopted in its stead. A public road, established by public authority, continues as 
such until it shall be vacated by a like authority. Champlin v. Morgan, 20 111. R., 181 ; 
Town of Lewistown v. Proctor, 27 111. R., 414. 



144 ROADS AND BRIDGES. [dTV. II. 

bridge funds of the same ; or to perform any labor, or to con- 
struct any road, bridge or culvert on any road which said per- 
son or persons desire to have established, widened or altered. 
And such contracts, in writing, made with said Commissioners, 
Enforcement shall be deemed good and valid in law, and may be enforced 
ot contract. ^ ga j^ Commissioners or their successors in office, before any 
court having jurisdiction. (1) 

Sec. 51. The records of the Town Clerk, or a certified 
clerk's record C0 VJ °f SIlcn record and papers, relating to the establishment, 
copy rtlfied location, alteration, widening or vacation of any road, shall be 
Evidence. prima facie evidence in all cases that all the necessary antece- 
Effect of same, dent provisions have been complied with, and that the action 
of the Commissioners of Highways, or other persons and offi- 
cers in regard thereto, were regular in all respects. (2) ' 

Certiorari is a proper proceeding to test the validity of proceedings in 

laying out a highway, whether by commissioners or supervisors, on appeal. This 
writ brings up for review the whole proceedings in laying out the road, and any de- 
fect in the original proceedings may be objected to. " If the proceedings are fuund 
irregular thev will be quashed. Dwight v. City Council of Sprinafield, 4 Grav R. 
(Mass. i, 107; State v. Yancleave, 1 Dutch R. (N. J.), 233; Town of Windfteld v. Moffatt, 
42 111. R., 48. 

The 9th section of the act of 1835, entitled " an act concerning public roads." re- 
quires an order of the County Commissioners' Court to locate a new road and to 
alter or vacate public roads (state roads excepted), and when the proceedings had 
under said act. to lay out and establish a new road, merely show the petition for 
the road, the appointment of viewers, and their report, the proceedings are insuffi- 
cient to establish the road. Nor will any subsequent proceedings "to alter, re- 
locate, or open said road," which are based'upon the assumption that the road then 
existed by force of the former and original proceedings, have the effect to establish 
such highway. Dempsey v. Donnelly, 58 111. R., 40. 

(1) Form of Contract offering Inducements in regard to Establish- 

ment, Alteration, Widening or Vacation of Road. 

It is hereby agreed on the part of A. B., of the town of , county 

of , Illinois, with the commissioners of highways of said town, and 

said A. B. does hereby offer as an inducement, and the same is accepted 
by said commissioners, that in case said commissioners shall [here setfo)-th 
what action is desired on the part of the commissioners], that then and on 

condition thereof, the said A. B. will pay to said town of for the 

benefit of the road and bridge fund of said town,* within {state time] after 
the date of such action on the part of said commissioners [or as the facts 
mag be]. 

In witness whereof, said A. B. has hereunto set his hand and seal, 

this day of 18 — . 

A. B., [seal] 
[To be signed also by the Commissioners.] 

(2) General Form of Certificate of Town Clerk to Copg of Road Record. 
State of Illinois, 

County, 

Town of 

I, A. B., Town Clerk of said town of , do hereby certify that the 

foregoing [or annexed] is a true and correct copy of the original thereof 
now remaining on file, and of record in my said office. 

In witness w r hereof, I have hereunto set my hand, this day of 

,18-. 

A. B., Town Clerk. 



DIV. II.] PRIVATE ROADS. 145 

PRIVATE ROADS. 

Sec. 52. Roads for private and public use, of the width ofprhate roads. 
three rods or less, may be laid out from one dwelling or plan- 
tation of an individual to any public road, or from one public 
road to another, or from one lot of land to another, or from a 
lot of land to the highway, on petition to the Commissioners of Petition. 
Highways by any person directly interested. The Commis- 
sioners, on receiving such petition, shall have power to lay out Laying out 
the road as asked for therein, to which end they shall proceed ro 
and examine into the merits of the case, and shall be governed 
in their proceedings by the rules and regulations prescribed in 
this act in relation to public roads. The jury shall consider 
the damages that may result to parties from said proposed Damages. 
road, and shall assess the damages to each individual owner of 
lands affected thereby. The amount of such damages shall be 
paid by the persons benefited thereby to the extent and in 
proportion that they are benefited, to be determined and declared 
by the jury. The remainder of the amount of damages over 
and above that to be paid by the parties as aforesaid, shall be 
paid by the land as in other cases. The amount of damages How paid. 
to be paid by individuals shall be paid to the parties entitled 
thereto before the road shall be opened for use. An appeal Appeal. 
may be taken on the question of the propriety and necessity 
of such road as in other cases. (1) 

(1) T7ie petition for a private raid, and all proceedings by the commis- 
sioners and others in relation thereto, are required to be substantially the same as 
prescribed in relation to public roads. 

TJte form of petition and other proceedings heretofore given relating to pub- 
lic roads may be used in case of private roads, by varving the same to suit the occa- 
sion. 

The constitution O/ Illinois, concerning 2»'ivate roads, Art. 3, Sec. 30. de- 
clares that " The General Assembly may provide for establishing and opening 
roads and cartways, connected with a public road, for private and public use." 

The intention of this provMon is to place all ways on the footing of public high- 
uuujs It has been doubted whether the legislature could authorize the taking of 
private property lor mere private way*, even though providedfor bv tiie constitution, 
because private property could only be taken against the consent of the owner for 
pub>ic use. Concord Railroad v. Grcclcy. 17 X. H. K.. 47. 

An uninterrupted use and enjoyment of a private wag over the land of an- 
other for twenty years, in the absence of evidence of express grant becomes an adverse 
enjoyment, sufficient to raise a presumption of a grant. But such use, to be conclu- 
sive evidence of a right must have been continuous, uninterrupted and exclusive: 
that is, under a claim of right, with the knowledge and acquiescence of the owner. 
The use of an easement for twenty years unexplained, will be presumed to be under 
a claim or assertion of right, and adverse, and not by the leave or favor of the 
owner; and such a use will not only give a title bv prescription, but will authorize 
the presumption of a grant. When a right to a private way is acquired by prescrip- 
tion, or by user of twenty years, it can only be lost by a non-user of twenty vears, 
or by a release A void proceeding for laying out a private road, or a void grant, 
may form the basts of an adverse use and enjovment of an easement in land. The 
consent of the owner of land to the laying out of a private road across his land, 
may be presumed from his acquiescence and the acquiesi enceof those deriving title 
from him, in th uninterrupted use of the road as a private road, bv others for 
twenty years, such consent will render the proceedings for laving out the road 
valid. tidier v. Oarlock. 8 Barb. R.,153. 

A. prescriptive right to a wag over the land of another cannot be acquired 

10 



UQ 



ROADS AXD BRIDGES. 



DIV. II.] 



Limitation 
Two years. 



Crops, 
Time to re 
move, 



W< rk on pri- 
vate roads al 
lowed not to 

exceed tax. 



Sec. 53. If such private road or cartway shall not be 
opened by the petitioners or other assigns -within two years 
from the time of making the order for the location of the same, 
such order shall be regarded as rescinded. 

Sec. 54. When such private road or cartway is proposed 
Fences, to pass over inclosed lands the owners of such lands shall have 
a reasonable time, not exceeding eight months, to be designated 
by the Commissioners of Highways, to harvest crops and 
remove fences which may be on such lands before such road or 
cartway shall be opened. 

Sec. dd. The Commissioners of Highways may, in their 
discretion, pay persons who live on or have private roads which 
are used by the public, for work done on such roads ; but in no 
case shall they be allowed more than the amount of their road 
tax for the year in which the work was done. 



short of twenty years' continuous and uninterrupted adverse enjoyment. Where the 
use has been for that length of time, and it has been peaceably, the law presumes a 
grant. If the use of a "right of way lacks in time, in peaceable enjoyment, or is 
founded on a lease, it will not amount to a prescrijitive right, even if more than 
twenty years have elapsed. Where a person enters as the tenant of anoth- r. he 
cannot acquire a prescriptive right of way over the lands of his lessor, which he 
thus holds as tenant. Kuhlman v. Hecht, 77 111. R., 570. 

Open and adverse use for twenty years, although beginning in trespass, will 
establish a right of way Sibley v. Ellis, 11 Gray R. (Mass. >, 417. 

A right of way cannot arise from mere )iecessity independent of any right 
by prescription. Tracy v. Atherton, 35 Vt. R. (6 Shaw), 52. But a right of way from 
necessity may be created where the owner sells land which is wholly surrounded 
by other lands of the grantor. In such case, the purchaser will have the right of 
way over the gran: or' s land, to and from his own. But if a party sells land no: 
entirely surrounded by his own. but only adjoining the same." the purchaser 
acquires no right of w'ay, by implication, over the remaining land of the grantor, 
even though it lies betwee'n the land bought and the public highwav. Kuhl- 
man v. Hecht, 77 111. R., 570. 

A gift of the right of way is not a gift of the earth, and other materials 
within the boundary lines of the way given. Smith v. Rowe, 19 Ga. R.. 69. 

Supposing the title of a person to a private road by prescription to be otherwise 
per.ect. the fact that such road has become less important to him than formerly, 
will not put an end to his right to use it. Crounse v. Weynple, 29 N. Y. Rep. c2 Ti'f- 
fany), .540. 

A righto/ way. derived in express terms, is ap2>artenant to the dominant 
estate, and passes by a conveyance of such estate without express mention of the 
appurtenances. It is a charge upon the servient premises, and continues such when 
thev are in the hands of any subsequent purchaser. Lide v. Hartley, 36 Ala. R., 627 ; 
Kuhlman v. Hccht. 77 111. R.. 570. 

A way held by grant or prescription will pass by conveyance of the land with 
which it is used and enjoyed as an appurtenance. But a mere license to use a way. 
which has not ripened into a right, but may be revoked, is not an appurten- 
ance, and will not pass to a grantee of the land. Kuhlman v. Hecht, 77 Id. R.. : 

lt'/iere a parti/ obtains a private road of the width of two rods, the owner 
of the land through which it passes must so build his fences as to leave full two 
rods in width in every part of the road; he cannot build a Virginia fence, placing 
the centre on the exterior lines of the two rods, with the angles projecting into the 
road. A party will be deemed, however, to have assented to such location of the 
fences, if apprised that the damages of the O'vuer of the lands were assessed in 
reference to such location, or if he permits the fences to be thus built without objec- 
tion. Her rick v. Stover, 5 Wend. R., 569. Hid. also. Ibid., that where a party obtains 
a right to a private road, he will be entitled to an action against the owner of the 
land, if he places his fence ten or twelve feet on the land acquired for the road, 
unless he has yielded his assent expressly or implicitly to such a location. But it 
seems tha f if the plaintiff had assented tb the location as made, or if he had seen 
the defendant constructing his fence as it is, and knowing that the angles encroach- 
ed upon the road and was silent, he would not be permitted to maintain an action 
for damages. 

An obstruction of a jtrivate road is a mere private injury, in which the pub- 
lic have no concern. Fowler v. Lansing, 5 Wend. R.. 



MY. II.] ROADS ON TOWN AND COUNTY LINES. 147 

ROADS ON TOWN AND COUNTY LINES. 

Sec. 56. Public roads may be established, altered, widened Roads on town 
or vacated on township or county lines, or from one township lines, 
into another, in the same manner as other public roads except 
that in such case a copy of the petition shall be posted up in Petition. 
and presented to the Commissioners of Highways of each town 
interested, said petition to be as in other cases, and signed by Posting. 
not less than twelve freeholders residing in either county, within freeholders. 
three miles of the road so to be altered, widened, located or laid 
out ; whereupon it shall be the duty of the Commissioners of commissioners 
Highways of the several towns to meet and act as one | 30t ]y > actasoneDOd y- 
in the same time and manner as in other cases, in considering 
the petition, viewing the premises, adjusting damages and 
making all orders in reference to such proposed road alteration, 
widening or vacation, and a majority of all such Commissioners Majority. 
must concur in all such orders ; and a copy of all final orders Copy of orders, 
and plats and papers shall be filed and recorded in each of the etc- ' filed< 
counties and towns interested. (1) 

Sec. 57. The Commissioners of Highways shall also,, in Allotment to 
case a new road is established allot to each of such towns the 
part of such road which each of such towns shall open and 
keep in repair, and the part so allotted shall be considered as 

An obstacle placed in a private road by the owner of the land over which it is laid 
out, cannot lawfully be removed by one having no right to use the road. Drake v. 
Rogers, 3 Hill R., 604. 

Where it appeared that a. road was from two an.rl a half to three rods 
wide, that it terminated at A's house without connecting with any other road, that 
it had never been used by the public, and the record on file with the town clerk 
described it as a "highway for A., beginning," etc., held, though it also appeared 
that for many years it had been included in a road district, the evidence did not 
authorize the court to pronounce it a public highway as a matter of law, but the 
question should at least have been submitted to the jury. It would seem that this 
evidence snowed the road to be a mere private one, intended for the accommodation 
of A. Drake v. Rogers, 3 Hill R„ 604. 

If a private way is opened, leading from a public street, and prepared 
for use in the same manner as a public street and with nothing to show that it is not 
such, the public may lawfully travel over it, although it is closed at one end. Dan- 
forth v. Durell, 8 Allen R. (Mass,), 242. 

(1) Form of Order of Commissioners of adjoining Towns in establish- 
ing, altering, widening or vacating a road on county or town lines, &c. 

State of Illinois, 

County of , 

At a meeting of the commissioners of highways of the towns of 

and , in said county, held in said town of , on the day of 

, A. D. 18 — , for the purpose of laying out a road upon a line between 

said towns [or on the county line, etc., or from one township into another, 
as the case may be], the same being duly petitioned for; it is ordered and 
determined by the said commissioners that a road be and the same is 
hereby laid out upon the line of said towns [or as the case mag be], accord- 
ing to the survey and plat thereof hereunto annexed, which survey the 
said commissioners have caused to be made as follows, to wit: [insert the 
survey as in other cases] and that said line above described be the center 



148 ROADS AND BRIDGES. [DIV. IT. 

Division of ex- wholly belonging to such town. They shall also divide the 
damaged expenses and damages which may accrue from such location, 
widening or alteration, and if they cannot agree, they shall 
Arbitration, refer the matter to three disinterested freeholders, as arbitra- 
tors, whose decision shall be final. (Tl 

APPEAL. 

Sec. 58. Any person or persons interested in the decision 
Appeal. of the Commissioners of Highways in determining to or in 

refusing to lay out, alter, widen or vacate any road or revok- 
ing any previous order or decision relative to any road, or from 
the verdict of any jury in assessing damages in opening alter- 
ing or vacating any road, may appeal from such decision to 
three Supervisors of the county, outside of the town in which 
Written notice. sucn roa ^ or proposed road is located by giving a written 
notice of such appeal to said Commissioners of Highways and 
to at least three of the petitioners within ten days after such 
decision has been filed in the office of the proper clerk ; and 
written peti- & \ 1SL [i a j gQ p resent a wr jtten petition to some Justice of the 

of said road, and the same is hereby declared to be a public highway, 

feet in width. 

In witness whereof, the said commissioners have hereunto subscribed 
their names, this day of , A. D. 18—. 

c'd'' 1 Commissioners of Highways 
^ jT t of Town of . 

n tt \ 

T ' T '' I Commissioners of Highways 



I. J., 
G.M. 



of Town of 



The proceedings in regard to roa<ls on townsJiip or cotintt/ lines, or from 
one township into another, it is contemplat- will be substantially the same, and 
conducted in like manner as in other caX,,, varied according to the facts. The 
forms used in other cases may be adopted ift this class of cases. 

The location of a highivay near to ' $own line, but wholly within the town, 
and not on the line, nor partly within both towns, is authorized to be done by the 
commissioners of the town in which the road is located. That in such case it does 
not require the joint action of the highway commissioners of both towns ; otherwise, 
when it is located on the town line, partly in each, as then it becomes a road com- 
mon to both bodies, and under the joint control of the two, and it must be located 
and maintained under the provisions of sections 56, 57 of the road act. See Mack 
v. Commissioners of Hiyhways, 41 111. R., 378. 

(1) JVfiere a road is located on the dividing line between townships, the 
commissioners of the towns must allot the expenses of keeping up the road as nearly 
equal as possible, each road to be attached to the town in which it lies, and a record 
of the partition and allotment to be made in the office of the town clerks of each 
of the respective towns. Without such allotment, the road cannot be op 'lied, 
neither of the towns having power to act. Kecch v. The People, 22 111. R., 478 ; Nies v. 
Franzen, 18 Wis. R., 537. The road, in such case, should be opened by the commis- 
sioners of the town to which road districts are allotted ; such allotment gives to the 
commissioners jurisdiction over so much of the road as is contained m the road dis- 
tricts allotted to their town. 

The reference to freeholders to determine as to the proper division of expenses 
and damages, should properly be reduced to writing by the commissioners in the 
form of an order, and preserved with the other papers in the case. The order may 
be in the following form : 



DIV. II.] APPEALS. 149 

Peace of the county, asking for an appeal, and stating on what Grounds of 

3 i i • x i /i\ appeal stated, 

grounds such appeal is taken. (1) 

Sec. 59. It shall be the duty of the justice of the peace to Trial of appeal. 

cause to be summoned three supervisors of the county to hear 

such appeal ; and said supervisors shall fix upon a time and 

place when said appeal will be heard by them ; and the person 

or persons appealing shall at least three days before such trial, Three days' 

give a written notice to the said Commissioners of Highways appeai° f 

and to at least three of the petitioners of the time and place 

of said trial ; and upon such appeal the said supervisors shall 

Form of Order of Commissioners referring matter of Expenses and 
■ Damages to Freeholders. 

County, ) 

Town of , \ ss ' 

The commissioners of highways of said town of , being unable to 

agree on dividing' the amount of expenses and damages between the 
towns of [state the towns] which accrue from the location [widening or 
alteration] of a certain road located [describe the location,] do refer the 
same to [state the names,] three disinterested freeholders. 

Witness our hands, this day of , A. D. 18 — . 

[Signed by the Commissioners.] 

A copy of the order of reference may be given to the freeholders as notice of their 
appointment. 

Form of Award of Freeholders on division of Expenses and Damages. 

County, ) 

Town of f ss ' 

We, the undersigned freeholders, to whom was referred by the com- 
missioners of highways of said town of , the matter of dividing the 

expenses and damages between the towns of [state the towns,] which 
accrue from the location [widening or alteration] of a certain road located 
[describe the road,] the total amount of such expenses and damages being 

§ , do determine and award that said amount be divided and paid 

by said towns as follows: [here state the amount apportioned to each 
town]. 

Witness our hands, this day of , A. D. 18 — . 

[Signed by the Freeholders.] 

(1) Form of Petition for Appeal from Decision of Commissioners, 
State of Illinois, ) aa 

County, f ss * 

To H. B., a Justice of the Peace in and for said county: 

The undersigned, A. B., C. D. and E. F., persons interested in the decis- 
ion of the commissioners of highways of the town of , in said 

county, in determining [or refusing] to lay out a road [or as the case mag 
be] as follows, [describe the road] do hereby appeal to and submit the 
matter in controversy to the decision of three supervisors of the county of 

aforesaid, to be selected by you agreeably to the statute in such cases 

made and provided, the order of said commissioners embodying said decis- 
ion, was filed in the town clerk's office of said town on the day of , 

A. D. 18 — , a copy of which is hereunto annexed, in and by which the 
road in question and the proceedings and determination of said commis- 
sioners will more fully appear. The grounds upon which this appeal is 
taken are [here briefly state the grounds,] and said appeal is brought in 
relation to the laying out of said iroad [or as the case may be] and to 
reverse entirely the decision of said commissioners [or as the case may be]. 



150 ROADS AND BRIDGES. [DIV. II. 

Power of have the same power and authority that is by this act con- 
supervisors. f erre d on the Commissioners of Highways, not only in regard 

to the laying out. altering, widening or vacating anv road, but 
May call jury, shall have the same power to cause a jury to be called to assess 

damages, whenever the state of the proceedings require it, and 

The undersigned being owners of land [or as the case may be] over which 
said highway is laid out [or as the case may be,] therefore asks that you as 
such justice of the peace. will proceed, according to law, and select three 
supervisors to hear and determine said appeal. 
Dated this day of , A. D. 18—. 

A. B. 

C. D. 

E. P. 

It iciU be n-ell to annex a copy of all pavers in the case occurring 
anterior to the order of the eonunissioners of highways, as well as a copy of the order, 
and have the town clerk certify the whole to be correct copies of the original on file 
in his office. The appeal may be by various persons at different times, but they 
should be heard at the same time. Corley el al v. Kerme iy, - _'S 111. R., 143. 

It has been held in New York, Bushwick v. Mrsserole, 10 Wend. K.. V2± that an ap- 
peal, statins the proceeding of commissioners in layins out a road to be illegal, is a 
sufficient compliance with the law. requiringthe grounds of the appeal to be briefly 
stated, in the case where exceptions were taken to the sufficiency or the petition, on 
the ground of the qualification of the petitioners within the meaning of the jaw, 
yet it was thought it would have been well to have specified the objec \ 

A\n a ■.■peal suspends the power* of the commissioners : and until their acts 
are affirmed bv a decision thev cannot cpen the road. If thev do so, they are tres- 
passers. Clark v. Phelps, 4 Cowen, R.. 190. 

If on an order being made discontinuing a highway, a fence be built 
across it. an appeal subsequently brought will not have the effect of rendering the 
fence a public nuisance. Drake v. Rogers, 3 Hill R., 

After the ap eal ihe superrisors will become actors, and if they do not 
proceed, it cannot be imputed as a lach to the partv. Clark v. Ptepi, 4 Oowen 
E.. 160. 

Form of Xotice of Appeal to he given to Commissioners of Highways 
and Petitioners. 

To J. B.. D. T., T. J., Commissioners of Highways of the town of , 

in the county of : 

Take notice that on the day of— . A. D. 1? — , the under- 
signed presented to L. M., Esq.. a justice of the peace of the county of 

■ . a written petition asking for an appeal from the decision of the 

commissioners of highways of the town of , in said county, made 

on the day of . A. D. 18 — . laying out a highway [or as the 

case may be] as follows: [describe the road]. 

Dated this day of , A. D. 18—. 

This notice should be served by delivering a copy to each of the commis- 
sioners, or by leaving at their dwelling. In the notice to the three petitioners, 
the address can be thus : 

"To [name the petitioners] three of the petitioners who petitioned for 
the road herein described."' 

The }iotice should be served upon the three petitioners in like manner as 
u; on the commissioner- of highways, so that each may have a copy. A true copy 
should be retained by the person or "person staking the appeal : and the person serv- 
ing such notice should make affidavit of the fact, to be endorsed upon the back of 
the copy of the notice retained, which affidavit may be in the following form. The 
supervisors to whom an appeal is taken, cannot act unless the commissioners and 
three of the petitioners are notified, and should they do so. their action is invalid. 
The appeal, however, will not be dismissed on failure to give the notice : it will stand 
until acted on by the supervisors. McPht . Holdridge, 24 111. R., 33. 



DIV. II.] APPEALS. 151 

the supervisors cannot agree with the owners of the land in 
regard to the same. (1) 

Sec. 60, And they shall make a report of their proceed- Report of 
inga and decision in the case, and in like manner that is by decislon " 
this act required by the Highway commissioners, and shall be 
entitled to two dollars and fifty cents per day; and their decis- compensation, 
ion shall be final in regard to laying out, altering, widening or Decision final. 

Form of Affidavit of Sere ice of Notice of Appeal upon Commissioners of 

Highways. 
State of Illinois, ) oc 

County. \ ss - 

E. M., being duly sworn, doth depose and say: That he did, on the 

day of , A. D. 18 — , make service of a notice in writing, of which 

the within is a true copy, upon A., B., and C, commissioners of highways 
of the town of , in said county, by delivering one to each of said com- 
missioners, [or by leaving at their dwelling houses, as the case may be]. 

E. M. 
Subscribed and sworn to before me, 

this day of , A. D. 18—. 

S. V., Justice of the Peace. 

Form of Affidavit of Service of Notice of Appeal upon three of the 

Petitioners. 
State of Illinois, [ 00 

County, J ss * 

E. P., being duly sworn, doth depose and say: That he did, on the 
day of , A. D. 18 — , make service of a notice in writing, of 



which the within is a true copy, upon E. B., W. C. and G-. S., being 
three of the petitioners who petitioned for said road, by delivering one 
to each of said "persons, [or by leaving at their dwelling houses, as the 
case may be.] E. P. 

Subscribed and sworn to before me, this 

day of , A. D. 18—. 

S. V., Justice of the Peace. 

TJie law does not provide for notice of an appeal to the owners of land 
affected. This is a defect in which the courts can afford no relief. It is the duty of 
such owners to take notice of the appeal from the proceedings pending, without 
special notice, and follow it up. Wells et al. v. Hicks, 27 111. R., 3-13. 

The attendance of a majority of the commissioners of highways, it 
seems, would be a waiver of notice as to the commissioners, but the attendance of 
one only will not have the effect. 20 Wend. R., 186. If the commissioners of high- 
ways and two of the petitioners appear before the supervisors on the day fixed by 
them, any informality there may be in the notice is waived, and if a postponement 
is then and there had to a future day, by consent, it is regular. Anderson v. Wood 
et al., 80 111. R., 15. 

Where commissioners of highways have acted upon a petition and treated 
it as valid they cannot afterwards in any proceeding in which they may be con- 
cerned, deny its sufficiency. See Carmel y. Judges of Putnam, 7 Wend." R., 264. 

When the supervisors dismiss an appeal and adjourn without any inten- 
tion of further action, they cannot resume the subject, unless notice of the time and 
place of a future meeting is served on the commissioners of highways and on the 
three petitioners before served, and without these the action of the supervisors is 
void. Ketch v. The People, 22 111. R., 478. 

(1) Form of Summons to three Siq)ervisors to hear Appeal. 
State of Illinois, ) oa 

County, i ss ' 

The People of the State of Illinois to A. B., Supervisor of the town of 

, C. D., Supervisor of the town of , and E. F., Supervisor of 

the town of : 

You, and each of you, are hereby summoned to meet and hear a cer- 



152 ROADS AND BRIDGES. [DIV. II. 

vacating such road, or in refusing to do the same, for one year 
after such decision. (1) 

Sec. 61. Any parties taking an appeal from the award of 

tain road appeal, taken by G. H., on a petition duly presented to the 
undersigned. 

Given under my hand, this dav of , A. D. 18 — . 

L. M., 
Justice of the Peace. 
Form of Order of Supervisors fixing time and place to hear Appeal. 
State of Illinois, \ 

County, \ ss ' 

In the matter of Road Appeal of G. H., on petition to L. M., Justice of 
the Peace of said county: 
The supervisors, to whom said appeal is taken, have fixed upon the 

day of , A. D. 18—, at the hour of o'clock — M., at 

[state the place,] as the time and place, when and where said appeal will 
be heard by said supervisors. 

Dated this day of , A. D. 18—, 

A. B., 
C. D., 
E. P., 

Supervisors. 

A copy of the order of supervisors fixing the time and place for hearing an 
appeal should be furnished to the person taking the appeal in time to give the re- 
quired notice to the commissioners and petitioners. 

Form of Notice to Commissioners of Highways of time and place 
for Trial of Appeal. 

To A., B. and C, Commissioners of Highways of the town of , 

county of : 

Take notice that in the matter of appeal of G. H. from the decision of 
the commissioners in laying out a highway [or as the case may be] as 
follows: [describe the road,] the trial of said appeal by the supervisors 
summoned for that purpose, as fixed by them, will be at [state the place] 
on the day of , A. D. 18 — , at the hour of — o'clock — M. 

Dated this day of , A. D. 18—. G. H. 

This notice should be served by copy as in other cases. The foregoing form 
can be changed to suit the case of notice to petitioners. 

(1) Form of Order of Supervisors on Road Appeal — Appeal from 

Decision in Favor of Road. 
State of Illinois, ) 

County, f ss ' 

Whereas, on the — day of , A. D. 18 — , H. H., presented 

to L. M., Esq., a justice of the peace of the county of , a petition 

asking for an appeal from the order and determination of the commis- 
sioners of highways of the town of , in said county, in laying out 

a highway [or as the case may be], as contained in the order of said com- 
missioners, deposited with the town clerk, and filed in his office, on the 

day of , A. D. 18 — , and the said justice of the peace having 

summoned us, the undersigned, three supervisors of said county, for the 

hearing of said appeal, and we having met on the day of , 

A. D. 18 — , at o'clock, — M., at [stateplace] to hear the proofs 

and allegation of the parties, being the time and place fixed upon by us, 
when and where we would meet to consider such appeal; and it appear- 
ing that said commissioners of highways and three of the petitioners in 
said case had been duly notified of the time and place of such hearing as 
required by law, did proceed to hear the proofs and allegations of the 
parties, and to consider said appeal; and we, being fully advised in the 



DIV. II.] APPEALS. 158 

the decision of the Highway Commissioners, or the verdict of costs of appeal. 
the jury, shall pay the cost of such appeal, in case the award 
of the decision of the Highway Commissioners, or the verdict 
of a jury is in all things sustained; and shall file a sufficient 

premises, do adjudge, order and determine that the order and determi- 
nation of said commissioners of highways be and the same is in all things 
affirmed [or as (he case man be~\. 

In witness whereof, we have hereunto set our hands, this day 

of , A. U. 18— . 

J. S., Supervisor of the town of . 

R. P., Supervisor of the town of . 

H. J.. Supervisor of the town of . 

Fees of supervisors, days each, $ . 

Form of Order of Supervisors' on Road Appeal — Appeal from Decision 

Refusing Road. 
State of Illinois, ) 
County. ] ss ' 

Whereas, on the day of , A. D. 18 — , J. R. presented to 

E. 13 , Esq., a justice of the peace of the county of- a petition, ask- 
ing for an appeal from the determination of the commissioners of high- 
ways of said town of in refusing to lay out a highway [or as the 

cave may be], which refusal appears endorsed on the petition for said 
road, returned and filed in the office of the county clerk of said 

county, on the day of , A. D. 18 — , and the said justice of the 

peace having summoned us, the undersigned, three supervisors of said 

county, for the hearing of said appeal, and we, having met on the 

day of A. D. 18 — , at o'clock, — M., at to hear the 

proofs and allegation of the parties, being the tune and place fixed upon 
by db, when and where we would meet to consider such appeal; and it 
appearing that said commissioners of highways and three of the peti- 
tioners in said case had been duly notified of the time and place of such 
hearing - , as required by law, did proceed to considersaid appeal; and hav- 
ing heard the proofs and allegations of the parties, and such reasons as 
were offered for and against the laying out of said road [or as the case 
may be], we were of the opinion that the laying out of said road [or as the 
case may be], was necessary and proper, and that the public interest will 
be promoted thereby, and that the decision of the said commissioners 
should therefore be reversed. 

AVe, therefore, caused a survey and plat of said road to be made on the 

day of , A. D. 18 — , by H. H., a competent surveyor, which 

plat and survey were to us duly reported, and are hereunto appended and 
made a part of this order; and having ascertained the aggregate amount 
of damages to which the owners of the land over which said road was to 
pass were entitled, and said damages having been definitely fixed by [here 
state the method of ascertaining the damages. If the appeal is from the 
verdict of a jury ^ and is decided before making this order, state that fact], 

we appointed the day of , A. D. 18 — , (being within thirty 

days after the total amount of damages was ascertained) at [state 

the place of meeting], as the time and place to meet and finally determine 
upon the laying out of said road [or as the case may be], of which meet- 
ing we gave public notice by causing three notices to be posted in public 
places in said town not less than five days prior thereto; and having met 
at the time and place appointed, and the aggregate amount of damages 
on account of the laying out of said road [or as the case may be], to wit: 

the sum of dollars and cents, appearing to be not more than 

reasonable compensation, and to have been fairly and legally assessed, and 



154 ROADS AXD BRIDGES. [dIY. II. 

the payment thereof not an unreasonable burden upon the taxpayers of 
the town, and having made such changes in the route of said road be- 
tween the terrnini thereof, upon the survey and plat as reported by the 
surveyor, as in our judgment the convenience and interest of the public 
required, as will fully appear from the description and plat hereinafter 
contained, it was finally determined that the said road be laid out [or as 
the case may be]. 

It is, therefore, hereby ordered and determined that the said road be and 
is hereby laid out [or as the case may be] as follows, to wit : beginning 
[here describe road] as shown by the plat hereunto annexed, and as so 

laid out [or as the case may be] is declared a public highway of 

feet wide, the line of said survey being the center of said road. 

In witness whereof, we, the said supervisors, have hereunto set our 

hands, this day of , A. D. 18 — . 

T. A., Supervisor of the town of . 

C. S., Supervisor of the town of . 

D. K., Supervisor of the town of . 

The form for assessment of damages by commissioners of highways in laving out 
a road, can be varied to suit the occasion of assessment of damages by supervisors 
on appeal. 

The order of the supervisors altering or establishing a, road should al- 
ways be drawn with a great degree of care, and should properly show, by recital or 
by document- and papers annexed and referred to, a history of the whole proceed- 
ings, so as to make a perfect record ; the foregoing form is rec unmended as being the 
most convenient method of the two. It has been held in New York. Harrington v. 
Pople. 6 Barb. R.. G 7. that to give commissioners of highways jurisdiction of pro- 
ceedings to lay out a highway, an application must be made to them in writing, 
duly signed as required by law : and that an order directing the laying out of a high- 
way, made on appeal from the decision of such commissioners, must show the mak- 
ing of such application to the commissioners, otherwise the order will not be con- 
clusive evidence of the regularity of the proceedings for laying out the road. 

Tli" rrfftilnritif <>r proceedings before the commissioners of highways, such 
os sufficiency of notice, cannot be questioned for the first time, and reviewed before 
the supervisors on appeal. Smith v. Alexander, 34 Ind. R.. 454: Wells etal: v. Hicks.'ZJ 
111. R.. 343. The only questions for the supervisors to decide on an appeal, are. as to the 
expediency or inexpediency of the road, and the amount of damages which the ap- 
pellant will sustain by its location over his land. The question of the jurisdiction 
of the commissioners could not arise on such a proceeding. Commissioner* v. Har- 
per. 38 111. R. 104. it is no part of the duty of the supervisors to hear dilatory and 
technical objections. Beadles v. Smith, la 111. R.. 826. 

Tlte supervisors have, no doubt, authority to determine whether the ap- 
peal is properly before them, by being regularly taken ; as that a sufficient bond has 
been filed, and the appeal taken by persons "duly qualified. Town of tomfieldv. 
Moffatt etal., 42 111. R.. 4$. Bu it seems they have no authority to entertain an" objec- 
tion to the regularity of the proceedings anterior to the decision of the commis- 
sioners ; as their decision can only be on the merits as to the necessity and pro- 
priety of laying out the road, and if any irregularity has intervened previous to the 
decision of the commissioners, it can ouly be corrected by certiorari directed to the 
commissioners. Warwick v. Judgea of Oswego Co., 13 Wend. R., 433. All objections 
of a dilatory nature should be made before the commissioners of highways, and 
should they" err in their proceedings, the remedy by certiorari, and net an appeal, is 
the proper ci iurse and which it seems will be awarded in such cases. See People v. 
Wilkinson. 13 III. R. 660. 

Upon an appeal to supervisors from the decision of the commissioners 
of highways, as to the laying out of a road, it is not necessary that the supervisors 
shoul» examine the entire road. It will be sufficient if they examine that portion 
of the road against which the objections are urged. Commissioners, etc., of Sonorax. 
Supervisor* of (Jarthage, etc.. et al., -7 111 R.. 411. 

On an appeal from the doings of the commissioners in laying out a road, an in- 
quirv into the damages of the owners of lands, it seems, will be proper to enable 
the "supervisor to determine whether tne benefit will equal the expense, and 
whether die public good will be promoted bv the road. Bushwick v. Messerole, 10 
Wend. R„ 122. 

It seems tjiat supervisors o)i hearing appeals from commissioners of 
highways, decide the appeal, not on the facts existing at the time of the original 
application to the commissioners, but on the fact existing at the time of the hearing 
befo e them. In this respect, the hearing befi >re them is in the nature of a new r pro- 
ceeding. See People v. Goodwin, 4 Seld. R . 573. 

After the supervisors have determined a case submitted on appeal, it be- 
comes an act done, and their power over the subject is exhausted. They cannot re- 
sume it and change the result. People v. Ferris. 41 Barb. R., 121. 

Hut where the supervisors havi committed errors in their order, revers- 



DIV. II.] APPEALS. 155 

bond with the Justice of the Peace or Town Clerk before tak- Bond for costs. 
ing such appeal, guaranteeing such payment in such case. (1) 

Sec. 62. The decision of a majority of the Supervisors in Majority may 
any appeal case shall be taken as the decision of said Super- 
visors. 

Sec. 63. When the Commissioners of Highways of one Appeal-Road 

town or 

town disagree with the Commissioners of Highways of an county line, 
adjoining town, in regard to the laying out of a new road, or 
the alteration, widening or vacation of an old road on any 
county or town line, appeals may be taken from such decision 
in the same manner as set forth in section 58 of this act : 

ing the order of the commissioners and determining to lay out a road they have a 
right, it seems, after filing their order, to deposit in the town clerk's office a docu- 
ment correcting the errors, which will be deemed a valid amendment. The re- 
versal of the commissioners order and determination to lay out the road, were quasi 
judicial acts, and could not be reversed or altered by the supervisors ; but making 
up the reoord of their proceedings was ministerial, and should they refuse to make 
such correction, it seems a mandamus will be avoided, requiring them to do so. 
Rallock v. Woolsey, 23 Wend. R., 328. 

Where tlie commissioners of highways refuse to open a road laid out by 
the supervisors, on appeal, a mandamus lies to compel them to do so ; which writ 
need not in trie first instance be directed to the commissioners by their individual 
names. It is only in case of disobedience to the writ that they are to be proceeded 
ag-inst personally. People v. Champion, 16 Johns. R., 61. 
"it has been held in New York, 7 Wend. R., 264, that a general appeal from the de- 
termination of commissioners refusing to lay out a road, is a sufficient compliance 
with the requirements of the statute. 

If the commissioners of highways entertain an application for relay- 
ing, vacating or altering of a road within one year after the determination of the 
supervisors on appeal, their proceedings will be void. People v. Township Board, 
13 Mich. R., 462. 

(1) Form of Appeal Bond when Appeal is from Decision of Com- 
missioners. 
Know all men by these presents, that we, H. H. and A. T., of the town 

of , in the county of , and State of Illinois, are held and 

firmly bound unto E. B., supervisor of the town of , in said county, 

and to his successors in office, in the penal sum of dollars, for the 

payment of which well and truly to be made, we bind ourselves, our 
heirs, executors and administrators, jointly, severally and firmly by these 
presents. 

Signed with our hands and sealed with our seals, this day of 

, A. D. 18—. 

The condition of the above obligation is such, that whereas, the above 
bounden H. H. has appealed from the decision of the commissioners of 

highways of the said town of , in laying out a highway [or as the 

case may be] from [here describe the road], by their order bearing date 

the — day of , A. D. 18—. 

Now, therefore, if the above bounden H. H. shall promptly pay, or 
cause to be paid, all costs arising from said appeal, in case the determi- 
nation of the commissioners of highways in the premises shall be in all 
things sustained, then the above obligation to be void, otherwise to 
remain in full force and virtue. 

H. H., [seal.] 
A. T., [seal.] 

Approved by me, this day of , A. D. 18 — . 

L. M., 
Justice of the Peace. 



156 



ROADS AND BRIDGES. 



[DIV. II. 



Proviso. Road 
on county line, 
to whom'ap- 
pealed. 



Just'ce to de- 
termine. 



Town and 
county line 
roads.' How 
allotted. 

"What deemed 
such. 



State line 
roads. 



Provided, That when such decision is in regard to a road on a 
county line, two Supervisors and one Commissioner of Hio-h- 
ways shall be selected from one county and two Commissioners 
of Highways and one Supervisor shall be selected from the 
other. The county from -which the two Supervisors shall be 
selected shall be determined by the party or parties taking the 
appeal, and the Justice of the Peace shall issue his summons 
accordingly. 

Sec. 64. All roads heretofore laid out upon town or county 
lines shall be divided, allotted and kept in repair in the manner 
as hereinbefore directed. Any public road that is or shall 
hereafter be laid out on a county or town line shall be held to 
be a road on a county or town line, although, owing to the 
topography of the ground along said county or town line, or 
at the crossing of any stream of water, the proper authorities, 
in establishing or locating such road may have located a por- 
tion of the same to one side of such county or town line. 

Sec. 65. Roads may be laid out and opened upon the line 
between this, and any adjoining State, as provided in the pre- 
ceding sections, whenever the laws of such adjoining State 
shall be applicable. 

Form of Appeal Bond when Appeal is bg Person interested in Ver- 
dict of assessing Road Damages. 
Know all men by these presents, that we, S. P. and A. H., of the town 

of , in the county of — ; , and State of Illinois, are held and 

firmly bound unto J. S., supervisor of the town of , in said county , 

and to his successor in office, in the penal sum of dollars, for the 

payment of winch well and truly to be made, we bind ourselves, our heirs, 
executors and administrators, jointly, severally and firmly by these presents. 

Signed with our hands and sealed with our seals, this dav of 

A. D. 18—. 

The condition of the above obligation is such, that whereas, the above 
bounden S. P., a person interested in the verdict of the jury who assessed 
damages in the matter of the laying out of a road [or as the case mag be ] 
from [here describe the road] has appealed from the decision of the com- 
missioners of highways in said matter. 

-Now, therefore, if the above bounden S. P., shall promptly pay, or 
cause to be paid, all costs arising from said appeal, in case the said ver- 
dict of the jury in the premises shall be in all things sustained, then the 
above obligation to be void, otherwise to remain in full force and virtue. 

S. P., [seal.] 
A. H., [seal.] 

Approved by me, this day of , A. D. 18 — . 

L. M., 
Justice of the Peace. 

If the bond on appeal is deemed insufficient in not reciting the <-ase in 
question correctly or in the manner of its execution, the objection should be made 
before the supervisors. If adjudged insufficient, it is but reasonable that the party 
should be permitted to cure the defect by filing a new bond. Where two names are 
affixed to a bond, being the same persons who take the appeal, and no other names 
appear as sureties, for the purposes of the case, one may be regarded as surety for 
the other. Even if this were not so, the objection comes too late on certiorari. Town 
of Winfield v. Moffat, 42 111. R., 47. 



1)1 V. II.] BRIDGES. 15t 

BRIDGES. 

Sec. 66. Bridges over streams which divide towns or coun- Town an(l 
ties, and bridges over streams on roads on county or towngg^J , lin How 
lines, shall be built and repaired at the equal expense of such built, repaired, 
towns or counties : Provided, That for the building and main- Proviso. Ex- 
taining of bridges over streams near county or town lines, in equally. ™ 
which both are equally interested, the expense of building and 
maintaining any such bridges shall be borne equally by both 
counti.es or towns. (1) 

Sec. 67. For the purpose of building or keeping in repair contracts in 
such bridge or bridges, it shall be lawful for the Commissioners ShTridges. 
of Highways of such adjoining towns or counties to enter into 
joint contracts, and such contracts may be enforced in law or Enforcement, 
equity, against such Commissioners jointly, the same as if 
entered into by individuals, and such Commissioners may be 
proceeded against, jointly, by any parties interested in such 
bridge or bridges, for any neglect of duty in reference to 
such bridge or bridges, or for any damages growing out of such 
neglect. (2) 

Sec. 68. If the Commissioners of Highways of either of Refusal or 
such towns, after reasonable notice in w T riting from the Com- out contract. 
missioners of Highways of any other such towns, shall neglect 
or refuse to build or repair any such bridge when any contract other party 
or agreement has been made in regard to the same, it shall be ma> U1 ' e c ' 
lawful for the Commissioners so giving notice to build or repair 

(]) tToiut liability of towns to contribute to the maintenance of a bridge 
built by private enterprise. A legal liability must be shown. This may be by record 
of official acts, by acts of possession and control, by the recognition and use of the 
easement, or in any manner evinci' g a complete understanding to that effect. The 
mere use of a bridge or easement so opened creates no liability. Town of Rutland v. 
Town of Dayton, 60 111. R., 58. 

(2) Form of Contract between Commissioners of Highivays of Adjoin- 
ing Toivns for Building Bridge. 

This contract, made and entered into this clay of , A. D. 

IS — , by and between A. B., C. D., and E. F., commissioners of highways 

of the town of , in the county of , and State of Illinois, of 

the one part, and G. H., I. J., and K. L., commissioners of highways of 

the town of , in said county, being adjoining towns, witnesseth, 

that said towns haying become liable to make a bridge across 

river, a stream dividing such towns, said commissioners, in consideration 
of the premises and of the agreement hereinafter set forth, to be kept and 
performed by the respective parties, do contract and agree, that said 

bridge shall be built over said river where the road leading from 

to , crosses the same, on the line of the center of said road; that 

said bridge shall be of the following plan and materials, to wit: [Set forth 
briefly the plan and materials, where such is. made part of the contract.] 

That the building of said bridge shall be let by contract within 

months from the date hereof, to the lowest bidder, who shall be required 
to complete the same within months from the date of accepting 



158 ROADS AND BRIDGES. [dIV. II. 

Expense recoy- the same, and to recover, by suit, one-half (or such amount as 

fusingparty." shall have been agreed upon) of the expense of so building or 

repairing such bridge, with costs of suit and interest from the 

time of the completion thereof, from the Commissioners so 

neglecting or refusing. (1) 

Sec. 69. Any judgment so recovered against the Com- 
judement to be misgioners of Highways of either of such towns, shall be a 

cbarsed on o *< 7 

town unless charge on such town, unless the court shall certify that the 
wififui. then neglect of [or] refusal of such Commissioners was willful or 
peKonai?y ners malicious, in which case only such Commissioners shall be 
liable. personally liable for such judgment, and the same may be 

enforced against them in their personal and individual capacity. 
Sec. 70. When it shall be necessary to build, construct or 

repair any bridge or road in any town, which would be an 

his bid. That the letting of said contract, the prosecution of the work, 
and acceptance thereof, shall be under the joint supervision and direction 
of said parties hereto, and their successors in office, and that the commis- 
sioners of each town will promptly furnish and pay over the due propor- 
tion of money that their said town may be liable for in building said 
bridge, as the payments shall become due upon the contract for building 
thereof. 

In witness whereof, the said parties have hereunto set their hands and 
seals, the day and year first above written. 

In presence of — ) A.B.. [seal." 

J CD.. | SEAL.' 

E. F., [seal/ 
Commissioners of Highways of the Town of 

G.H., [<EAL.; 
I. J., [SEAL. 

K. L., [seal/ 
Commissioners of Highways of the Town of . 

Hie foregoing form can be varied or enlarged, to suit the circumstances 
of partieula'r cases: 

(1) Form of Xotice to Commissioners of Highways of Adjoining Towns 
to join in Performing Contract for -Building Bridge. 
To A. B., C. D., and E. F., Commissioners of Highways of the town 

of , county of : 

You are hereby notified to fulfill, on your part, the contract entered into 
by you [or by your board], with the undersigned commissioners of high- 
ways of the town of , in said county, [or with the commissioners of 

highways of the town of , in said county], the clay of . A. 

D. 18 — . for building a bridge over river, at the point where the road 

leading from to crosses said river, by [here set forth th 

forma nee required as stipulated in the contract}, and that unless you shall 

so perform on your part within days from this date, the undersigned. 

said commissioners of highways, will proceed, as empowered by law. and 
complete said bridge, and wiU claim of you the due proportion of expense 
thereof, chargeable to your town. 

Dated at , this day of . A. D. lc 

Commissioner: 

of 

Highways. 



10 — . 
E. F.. ) 
G.H., [ 



DIV. II.] BRIDGES. 150 

unreasonable burden to the same, the cost of which will be more when county 

, ,.,. vv l^'i to aid in build- 

than can be raised in one year by ordinary road taxes in such ing of bridge, 
town, the Commissioners of Highways, shall present a petition 
to the County Board of the county in which such town is sit- 
uated, praying for an appropriation from the County Treasury 
to aid in the building, constructing and repairing of such bridge 
or road, and such County Board shall when one-half the neces- One-half ex- 
sary funds have been provided for by the town authorities, county. ° rne 
appropriate the other half: Provided, That all unexpended Proviso, tin- 

cxpGnclcn sur- 

surplus of any appropriation that may be granted under the plus paid back, 
provisions of this section shall be paid back into the County 
Treasury. (1) 

Sec. 71. When it shall be necessary to build a bridge in vote to borrow 

, . , , , . t d r money to build 

any town which would require a larger sum ot money to com- bridge, 
plete than is authorized to be raised by taxation under the con- 
stitution upon a single year's assessment, the Commissioners of 
Highways shall petition the supervisor of the town to call a 
special town meeting to vote on the proposition " to borrow Requisites of 
money to build a bridge," which said petition shall be signed petltlon ' 
by said Commissioners in their official capacity and by at least 
twenty-five freeholders of such town, and thereupon such peti- 
tion shall be filed in the office of the Town Clerk of such town. 
Upon the filing of said petition, the Supervisor shall order the 
Town Clerk, by an instrument in writing to be signed by him 
to post up in four of the most public places in said town, NotiC€S P° sted - 
notices of such special town meeting; which notice shall state 
the object, time and place of meeting, and the manner in which 
the voting is to be had which shall invariably be, by ballot, 

(lj Form of Petition to County Board for an Appropriation to Aid 

in Building or Repairing a Bridge or Road. 
To the Board of Supervisors of the County of , in the State of Illi- 
nois: 

The undersigned commissioners of highways of the town of , in 

said county, would respectfully represent that a bridge needs to be built 

\or repaired] over the river, where the same is intersected by the 

highway leading from to , in said town; that the total cost 

of building said bridge [or as the case mag be], will be dollars, 

which would be an unreasonable burden to said town, and more than can 
be raised in one year by ordinary road taxes therein; the amount raised 
by said taxes being only dollars; wherefore, the said commis- 
sioners of highways hereby petition you for an appropriation of ' 

dollars from the county treasury of said county, to aid in building said 
bridge [or as the case mag be]. 

Dated at , this day of , A. D. 18 — . 

E. M., ) Commissioners 
A. T., [ of 

E. B., ) Highways. 
The foregoing form can be changed to snit the occasion of a road, instead 
of a bridge. 



160 ROADS AXD BRIDGES. [DIV. II. 

and shall be "to borrow money to build a bridge," when the 
voter desires to vote in favor of that proposition, and "against 
the proposition to borrow money to build a bridge," when the 
voter desires to vote against said proposition. The special town 

Returns. meeting shall be held and returns thereof made in the same 

manner as other special town meetings are now or may here- 
after be provided by law ; and if it shall appear that a majority 
of the legal voters voting at said election shall be in favor of 
said proposition, the Supervisor and Town Clerk, acting under 
the direction of the Commissioners of Highways of said town, 
shall issue from time to time, as the work progresses, a suffi- 

Bonds issued, cient amount in the aggregate of the bonds of said town for 
the purpose of building such bridge ; said bonds to be of such 
denominations, bear such rate of interest, not exceeding ten 
per cent., upon such time, and be disposed of as the neces- 
sities and conveniences of said town officers require : Provided, 

sale of bonds, That said bonds shall not be sold or disposed of for less than 
their par value, and such town shall provide for the payment of 

taxation. v such bonds and the interest thereon by appropriate taxation. (1) 

(1) Form of Petition to Supervisor for Special Town Meeting to Vote 
on Question to Borrow Money to Build Bridge. 

To A. B., Supervisor of the Town of , in the County of , and 

State of Illinois-: 
The undersigned, commissioners of highways and twenty-five free- 
holders of said town, would respectfully represent that a bridge is neces- 
sary to be built over the river where" the same is intersected by 

the highway leading from to , in said town ; that the total 

cost of building said bridge will be dollars, which would be a 

larger sum than is authorized to be raised by taxation upon a single year's 
assessment, and that it will be necessary to borrow money to build said 
bridge; wherefore the undersigned hereby petition you to call a special 
town meeting to vote on the proposition "to borrow money to build a 
bridge," as above set forth. 

Dated at , this day of , A. D. 18 — . 

A. B., ) Commissioners 
C. D., [ of 

E. F., ) Highways. 
And twenty-five freeholders. 
For form of notice of special town meeting, see ante, p. 43. 

Form of Instrument by Supervisor ordering Town Clerk to post notices 
of Special Town Meeting. 
County, 



\ 



Town of - 

The commissioners of highways of said town of , having duly pe- 
titioned the Supervisor of said town, to call a special town meeting to vote 
on the proposition to borrow money to build a bridge as set forth in said 
petition, and which petition was filed in the office of the town clerk the 

— day of : — , 18 — , it is therefore ordered by said, supervisor that 

the town clerk post up in four of the most public places in said town, no- 
tices of such special town meeting, according to the law in such cases. 

Witness my hand, this day of , A. D. 18 — . 

A. B., Supervisor. 



DIV. II.] MISCELLANEOUS PROVISIONS. 161 



MISCELLANEOUS PROVISIONS. 

Sec. 72. Upon the petition of twelve freeholders, it shall Re-survey and 
be the duty of the Commissioners of Highways of each town plat ot road ' 
within a reasonable time, to employ a competent surveyor and 
have any road or roads designated in such petition in their Petition, 
several towns re-surveyed, and plats thereof made, which plats 
and surveys shall be by them filed for record in the office of Filed for 
the Town Clerk : Provided, That this section shall not apply record - 
where the same has been already done, unless the exact loca- apply not t0 
tion of such road is uncertain. (1) 

Sec. 73. The establishment of a new road on the route of New road not 
a road already established according to law, shall not vacate road, unless 
the road previously established, unless such vacation is prayed etc. ltl0n states ' 
for in the petition, and so declared in the order establishing 
the new road. 

Sec. 74. The Commissioners of Highways of the several contracts for 
towns are hereby authorized to contract for the construction 
and repairing of roads, the building and repairing of bridges, 
in their respective towns, and they shall let such contracts by 
a public letting, on the first Monday of May, A. D. 1878, and public letting. 
on the tirst Monday of May in each and every year thereafter, 
to the lowest responsible bidder, upon proper notice being Lowest bidder, 
given by posting copies of such notices in at least ten public posting notices, 
places in their town, not less than ten days before the time of 
such public letting : Provided, The notices shall specify the W hat notice to 
amount and kind of work to be done, and the time in which it s P ecif y- 

The commissioners of highways in discharging their duties, are required 
carefully to estimate the sum necessary to be expended in their township lor making 
and repairing roads for the ensuing year, see post Sec. 81, and to levy the same, if it 
does not exceed forty cents on the $100 worth of taxable property, and return the 
same to the County Clerk on or before the Tuesday next preceeding the annual 
meeting of the board of supervisors in September. They are limited to what will 
be required in defraying the cost of keeping in repair the roads and bridges for 
the ensuing year. In case of bridges, if the levy of forty cents is not sufficient, 
they must call upon the people to vote an additional amount, which is limited to 
sixty cents on the $100, or for power to bonow money. Commissioners of Highways, 
cic. v. NeweO, et al.. 80 111. R., 581. 

Ky the law as now existing, however, the commissioners are authorized 
to levy forty cents for making and repairing roads only, and seems to contemplate a 
further levy of forty cents for making and repairing bridges, payment of damages, 
purchase of tools and implements, materials, and payment of outstanding orders. 
iieepost ; Sec. 81. 

(1) Form of Petition of Twelve Freeholders for Re-survey of Road. 

To the Commissioners of Highways of the town of , county of , 

State of Illinois : 
We, the undersigned freeholders of said town, do petition that within 
a reasonable time a competent surveyor be employed, and that the fol- 
lowing road be re-surveyed, and a plat thereof made and filed for 
record in the town clerk's office, according to the statute in such cases, to 
wit: [here describe the road, or roads]. 

Dated this day of , A. D. 18—. 

11 [To be signed by twelve freeholders.] 



162 



ROADS AXD BRIDGES. 



[DIV. II. 



Proviso— not 
prevent lettinj 
at different 
rimes under 
necessity. 



Private con- 
tract not ex- 
ceeding £25.00. 



Proviso— vote 
to pav tax in 
labor. 



Ma v reject all 

bid's. 



shall be completed: Provided, This section shall not be con- 
strued so as to prevent the letting of any conti act at any other 
time than the first Monday in May, when necessity requires 
it, or if the Commissioners of Highways deem it to be to the 
interest of their town, they may, to an amount not exceeding 
twenty-five dollars, privately contract with persons as they 
deem best for putting and keeping roads and bridges in repair, 
but in no case shall such contracts exonerate such Commis- 
sioners from liability for failure to keep such roads and bridges 
in repair : Provided, The legal voters of any township in the 
State in counties where township organization, has been, or 
may hereafter be adopted, may by a majority vote by ballot at 
their annual town meeting provide that the road tax assessed 
by the Commissioners of Highways under the provisions of 
this act may be paid in labor under such rules and regulations 
as said Highway Commissioners may adopt. (1) 

Sec. 75. At such public letting, as provided for in the 
preceding section, the Commissioners of Highways shall have 

(1) Form of Notice of Public Letting of Contract for Construction 
or Repair of Road. 

HIGHWAY NOTICE— PUBLIC LETTING OF CONTRACT. 

Xotice is hereby given that proposals will be received by the under- 
signed commissioners of highways of the town of , county of 

, State of Illinois, on the — dav of May, 18 — , being: the first 

Monday in said montfc, for the repairing [or construction of a road, or 
building, or repairing a bridge], at [state the place or location with rea- 
sonable certainty,] that the same will be let by contract by public letting, 
to the lowest responsible bidder, at the hour of — o'clock — M., at [state 
the place of letting]. 

The amount and kind of work to be done is as follows : [state the 

same]. The work to be completed by the day of , A. D. 

18—. 

Dated at , this day of , A. D. 18—. 



A. B., ) 
C. P., [ 
E. P., 



Commissioners 
of 
Highways. 
Form of Contract for building a Bridge. 

This contract made and entered into this day of , A. D. 18 — , 

between A. B.. C. D., and E. F., commissioners of highways of the town 

of , in the county of , and State of Illinois, of the one part, and 

G. H., of , of the" other part, witnesseth: 

That the said G. H., for the considerations hereinafter mentioned, does, 
for himself, his executors and administrators, promise and agree to and 
with the said commissioners of highways and then- successors in office, 

that he, the said G. H., shall and will within the space of next after 

the date hereof, furnish all materials for the bridge hereinafter mentioned, 
and in a good, substantial and workmanlike manner, erect, build, finish 
and complete to the satisfaction of the said commissioners of highways. 

their successors in office, a bridge over the river on the highway 

leading from to in said town, according to the following [or 

amended] plans and specifications [here give plans and specif cations]. 

In consideration whereof, the said commissioners of highways, in behalf 
of said town, promise and agree to and with the said G. H., his executors 



DIV. II.] MISCELLANEOUS PROVISIONS. 163 



con- 
tra tor. 



the ri^ht to reicct any and all bids if they deem it to the best Bond of 
interests of the town, and no contract shall be considered as 
let unless the contractor shall, within ten days after the letting 
enter into contract and file a bond with two good and sufficient 
sureties with the Commissioners in the penal sum of double 
the value of the amount of the contract, payable to the Com- 
missioners of Highways of the town, upon failure to comply 
with the conditions of his or their contract. (1) 

Sec. 76. All contracts for the building or opening of any contracts, how 
road, building or repairing of any bridge shall be made paya- pa>a 
ble as soon as the same is accepted by a majority of the Com- 
missioners of Highways, and it is hereby made the duty of 
the Clerk of the Board of Commissioners to draw his order on order, 
the Treasurer for the amount of such contract, which order shall 
be countersigned by the general overseer of highways. All con- 
tracts for the keeping of roads in repair during one year are 
hereby made payable quarterly, upon the presentation by the Quarterly pay- 
contractor to the Clerk of the Board of Commissioners, the cer- 
tificate of the general township overseer of highways, that the certificate of 
road or section embraced in the contract has been by him overeeer - 

administrators and assigns, that said town shall and will, well and truly 
pay, or cause to be paid, unto the said G. H., or his assigns, the sum of 

dollars as soon as the said work is accepted by a majority of said 

commissioners. 

In witness whereof, we have hereunto set our hands, this day of 

, A. D. 18—. 

A. B., ) Commissioners 
C. D., [ of 

E. F., ) Highways. 
G. H. 
(1) Form of Bond from Contractor to Commissioners of Highways. 
Know all men by these presents, that we, A. B., as principal, and C. 

D. and E. F., as sureties, all of the town of , in the county of , 

and State of Illinois, are held and firmly bound unto G. H , K. L. and N. 

0., commissioners of highways of the town of , in said county, and 

to their successors in office, in the penal sum of dollars {dotible the 

valve of amount of contract) for the payment of which sum well and 
truly to be made, we bind ourselves, our heirs, executors and adminis- 
trators, jointly, severally and firmly by these presents. 

Signed with our hands and sealed with our seals, this day of , 

A. D. 18—. 
The condition of the above obligation is such that whereas the above 

bounden A. B., did on the day of , A. D. 18 — , make and enter 

into a certain contract in writing with the aforesaid commissioners of 
highways for [here insert subject matter of contract]. 

Now, therefore, if the above bounden A. B. shall well and faithfully 
perform such contract and comply with the conditions thereof as therein 
expressed, then the above obligation to be void, otherwise to remain in 
full force and virtue. 

A. B., [seal.' 
C. D., [seal.' 
E. P., [seal.' 



164 



ROADS AND BRIDGES. 



[DIV. II, 



inspected, that the same is in good repair, and that the con- 
tractor has complied with all the requirements of his con- 
tract. (1) 

Sec. 77. Provided, That the collector of taxes shall receive 
from any taxpayer in payment of said taxpayer's road and 
bridge tax, any order of the Commissioners of highways on 
their Treasurer, for work done on or material furnished, for, 
the construction or repairs of the highways or bridges, in any 
sum not to exceed the amount of such person's road and bridge 
tax then due. 

Sec. 78. Whenever a public road is ordered to be estab- 
lished or altered, according to the provisions of this act, which 
road shall pass through or on inclosed land, the Commis- 
sioners of Highways shall give the owner or occupant of such 
land sixty days' notice in writing to remove his fences. If 
such owner or occupant does not remove his fence within sixty 
davs after such notice, the Commissioners shall cause the same 



Orders re- 
ceived for tax. 



Amount 
limited. 



Removal of 
fences. 



Sixty days' 
notice. 



mayremove 618 to ^ e remove d, an ^ direct the road to be opened and worked ; 

forfeit. and such owner shall forfeit to such Commissioners the sum of 

one dollar for every day he shall permit his fence to remain 
after the expiration of said sixty days, and shall pay all neces- 

costof sary cost of removal, to be collected by said Commissioners 

before any Justice of the Peace having jurisdiction. (2) 



(1) The general form of order of commissioners of liiyhways heretofore 
given, may be used in the case provided in the above section ; see ante, p. 114. The 
order should be signed also, or countersigned by the general overseer of highways. 

Form of Certificate of General Overseer of Inspection of Road. 

I, A. B., general overseer of highways of the town of , county 

of /State of Illinois, do hereby certify that I have inspected the 

following section of road, to wit : [State the portion inspected], embraced 
in the contract of CD., that the same is in good repair, and that said 
contractor has complied with all the requirements of his said contract. 

Witness my hand, this day of — , A. D. 18 — . 

A. B., General Overseer. 

(2) Form of Notice for Removal of Fences. 

To Mr. J. S.: 

You will take notice that the commissioners of highways of the town of 

, in the county of . have laid out a public highway, agreeable to 

an order of said commissioners, bearing date the day of , A. D. 

18 — , a copy of which is hereunto annexed; which highway passes through 
certain inclosed lands owned [or occupied] by you. [It will be well here 
to describe the premises with reasonable certainty .] You are therefore, 
hereby notified and required to remove your fences from within the bounds 
of said highway, within sixty days after the service of this notice. 

H. W., ) Commissioners 
S. Y., I m of 
H. S., ) Highways. 
Dated at , this day of , A. D. 18 — . 



DIV. II.] MISCELLANEOUS PROVISIONS. 165 

In the removal offences in case of improved lands, the intention of the 
law is to giYe time for removal and rebuilding thereof. Where the land is unin- 
etoaed or Fences are voluntarily removed, this portion of the law does not apply. 
Where fences are voluntarily removed, and a subsequent owner of the land replaces 
them and again obstructs the road, he is not entitled to the benefits of the law, or 
notice to remove such fences. The law does not require an order to open the road, 
except in case of inclosed land and where there is a refusal to remove" fences. See 
Hunter v. Jones, 13 Minn. R. It seems that a road passing through unimproved and 
uninclosed lands, is considered in contemplation of law, opened when established. 
Ferris v. Ward, 4 Glim. R., 499. 

Where a road, after its survey and location, has not been opened for the 
use of the public, nor the proper notice given to the owner or occupant of the land 
to remove his fences neither the commissioners nor any other person can remove a 
fence without becoming trespassers. Taylor v. Marcey, 25 111. R., 518. If the fences 
are removed without giving sixty days' notice, as required by the stitute, all per- 
sons concerned therein are trespassers. Kelly v. Horton. 2 Cowen R., 424. 

A.n overseer of highways in proceeding to open a road by removal of 
fences, cannot justify in an action of trespass, by showing merely an order from 
the commissioners of highways, directing hi.ni to open the road, if the legality of the 
road is questioned, he must show also that it was in all respects legally laid out and 
established. The commissioners, and all persons acting under them, must show that 
a case existed which justified ti.e order by them. Guptailv. Teft, 16 111. R., 365 ; Dun- 
ning v. Mathews, id. 308. But where a road is ordered to be opened, and the owner of 
the land over which it passes receives the money awarded to him as damages, he is 
estopped from alleging that the proceedings were void. Kile v. Town of Yellowhead, 
SO 111. R., 208. 

The act of a party in recognizing a highway by repairing a fence on the side 
thereof, does not estop him from afterwards denying that it is a legal highway. 
Com'rs of Highways v. Swan, 65 Barb. R., 210. 

The commissioners can be made to respond in damages if they are misled 
as to the correct line of the road, and in attempting to open it, commit a trespass 
thereby. Bayer v. Tanner, 29 111. R., 135. A party pulling down a fence in such case, 
the burden is upon him to show that it was upon the location of the highway as es- 
tablished. Weed v. Sibley, 40 Maine R., 356. 

A. copy of the field notes of a survey of a public highway made by a 
county surveyor, but not under competent authority, and filed with a town clerk, 
the copy of which is made and certified by him, is not evidence to establish the 
location of a public road. Nor are such notes of a survey made by the same per- 
son after he has ceased to be the county surveyor. Gray et al. v. Waterman, 40 111. 
R., 522. 

Should commissioners of highways proceed in obedience to the mandate of a 
court, to open a road after it had been discontinued, they would be trespassers. 
"Where a peremptory writ of mandamus was awarded against commissioners of 
highways, requiring them to open a certain road, it was held to be a sufficient 
excuse, on the part of the commissioners, for not obeying the writ, that after the 
writ was awarded, and beforo it was issued and served, the road in question had 
been duly vacated. Commissioners of Swan Township v. People ex rel. Walden, 31 111. 
R., 97. 

And where a fence was removed from what was supposed to be a public highway, 
under direction of a resolution adopted at a town meeting, evidence of such resolu- 
tion is not admissible as a bar to the action, nor in mitigation of the actual damages 
sustained, for towns have no such power, but such evidence is proper as tending to 
repel malice, and thus to mitigate punitive damages. Gray et al. v. Waterman, 40 111. 
R..522. 

In an action of trespass for removing a fence, the plaintiff, if he recover, 
may have the damage growing out of its removal, and also for the loss of crops grow- 
ing at the time, which resulted from the perpetration of the unlawful act. In such 
a case the wrong-doer is responsible for all the consequences directly resulting from 
the unlawful act. Grey et. al. v. Waterman, 40 111. R., 522. The same rule in Buck- 
master v. Cool, 12 111. R., 74. 

Where commissioners of highways had laid out a road in pursuance of 
law, "but neglected to file their proceeding, and a mandamus directed to their suc- 
cessors, commanding them to open it, by mistake misdescribed the road, on applica- 
tion for a rule requiring the defendants to furnish the original application, and that 
the mandamus be amended thereby, it appeared that the paper sought for had re- 
mained in the hands of H., a former commissioner, and was beyond the control of 
defendants. Motion, therefore, denied as to the defendants. But a rule was made 
upon H. that he file the paper with the clerk of the town, etc., or show just cause why 
he should not do so. People v. Vail, 1 Cowen R., 589. 

A mandamus to commissioners of highways to open and work a road will be grant- 
ed without regard to the n^ar approach of the expiration of their offices; when the 
term of the office expires, their successors must obey tne command of the writ. Peo- 
ples. Collins, 19 Wend. R. 56. But a mandamus is not a proper remedy to try the ques- 
tion of the location of a public highway, as between the public and the land holders 
over whose land it passes. The court had a discretion in granting or refusing the 
writ. People ex rel. Morgan v. Curyea et al., 16 111. R., 547. 

Where a road is used and traveled by the public as a highway, and is recognized 
and kept in repair as such, by the authority whose duty it is by law to open and 



166 ROADS AND BRIDGES. [dIV. II. 

repair public roads, proof of these facts furnishes a legal presumption, liable to be re- 
butted, that such road is a public highway. Eyman v. People, 1 Gilm. R., 4 ; Scaly v. 
Brown, id., 10. 

Parol evidence is admissible to show where a road is located. Although 
there should be some uncertainty as to trie precise location of the road, vet if the 
evidence be such as to convince the jury as to its location, it is sufficient* for them 
to act upon. Jfealyy. Broun, 1 Gilm. R., 10. 

If the public is to be charged with the abandonment of a road, the proof of 
the fact must be accompanied by the further proof that another road has been 
adopted in its stead. A public road, established by public authority, continues as 
such until it shall be vacated by a like authority. Lhamplin v. Morgan, 20 111. R.. 161. 

The notice for the removal of fences should be served b.-i leaving a copy 
with the owner or occupant, and a true copy should in all cases be retained bv the 
commissioners, as actual notice must be proved should it ever be questioned! and 
will nor be presumed. The presumption which is sometimes indulged in favor of 
public officers, does not extend to such a case. Case v. Thompson, 6 Wend. R.. 634. 

A notice requiring a person to remove two certain rail fences built by him 
ac oss a public road, and specifying the particular place of obstruction bv stating 
the direction of the fences made "by him, was held sufficient. Ferris v. Ward, 4 Gilm. 
R.. 499. 

Taking private property for public use. The right of taking private 
property for public use. is a right inherent in all governments, as n cessary to its 
existence and protection. But. the constitution of the United states, and those of 
the several re provided that compensation shall be made to the owner. 

Since the new era of internal improvements in this country, which has been inau- 
gurated within the past half century, there has been much controversy as to the 
power of the legislature under this general constitutional provision. But it is set- 
tled in Illinois under the prest-nt constitution, that the compensation must be 
made in money. Carpenter v. Jennings et al., 11 111. R., 2d0. 

The right to take private property for public use is called the right of 
Eminent Domain. It is allowed to be exercised by railroad companies and other 
corporations of like nature, on the principle that they are a public necessity, and in 
exercising this right, thev act as the agents of, and "represent the public. " Swan v. 
Williams, 2 Mich. R.. 4ii7; Bobbins v. MU. 6c H. B. B. B. Co., 6 Wis. R., 696; Sl^ardsou 
v. Mil. 6c Bel. B. B. Co.. et al.. id., 605. 

The cons ituiional provision respecting the talcing of private property for 
public purposes, has no application t » the case of a dedication of a highway by the 
# owner, or where, from his long acquiescence in the public use of it, a dedication is 

presumed by law. Bumpus v. Milter, 4 Mich. R., 159. 

Land u-hich is taken and used for a higliwag is taken for public use within 
the meaning of the constitution. Norton v. Peck, 3 Wis. R.. 714. But it is not so taken 
or appropriated until the road is opened by the commissioners. Evans ex rel. etc., v. 
Jamt^ el al. 4 Wis. R., 40S. 

Mandamus to open a road. An application for mandamus cannot be defeated 
bv the commissioners of highways, by showing that sixty days" notice have not been 
given to owners of lands to remove their fences. The object of such proceeding is 
to compel them to take every initiatory step and perform all acts necessary to open 
the road, after it has been legally laid out. As a general rule, the sixty days' notice 
to owners of lands required "by the statute, should be given upon the laying out of 
the road, where an appeal has not been taken. Although the commissioners are not 
expressly authorized to give an extension of time for opening a road, yet the statute 
should have a reasonable construction. Cases may arise where it would not be the 
dun - of the commissioners to proceed at once to "open a road; as where a road is 
laid out through cultivated lands at a season when there are growing crops thereon. 
It would not oe unreasonable to allow the owners sufficient time to gather their 
crops. But the mere fact of its being at a season when the road couid not be put in 
repair, is not sufficient to authorize an extension of time, nor where crops have been 
planted after the final location of the road. Hall v. The People ex rel. etc., 57 111. 

R.. •: ? 

In an application for mandamus against the commissioners of highways to compel 
them to open a road, any citizen of the town may be relator, and institute the pro- 
ceeding. He need show no other interes; than that of being a citizen of the tow.i. 
Hall et al. v. The People ex rel.. etc.. 57 HI. R.. 307. 

Assessment and payment of damages. It seems to be settled that the com- 
missioners of highways cannot be compelled to open a road until the damages a 
to owners of lands taken have either been released or they have been paid their 
damages, or that it be shown that there is money under the control of the commis- 
sioners with which to tender or pav ihe damages assessed. In the case of Hall et al. 
v. The People ex rel. etc., 57 111. R.. 307. which was an application for mandamus to com- 
pel the opening of a highway, the court say Scott. Justice) : 

The petition in this case is manifestly defective, in not averring that the damages 
assessed to ihe land owners on the route of the road have been paid or released, or 
that there is money under the control of the commissioners of highways with which 
to tender or pay the damages so assessed. No man can be compelled to pan with his 
property witho"ut just compensation. This is a constitutional right that he cannot 
be deprived of by any statute. Xo corporation, public or private, can appropriate 
the property of anv one to their own use without first tendering or paying the dam- 
ages assessed under the forms of the law. The party ought not to be driven to his 



1UV. II.] MISCELLANEOUS PROVISIONS. 167 



SBC. TO. The Commissioners of Highways shall receive for Per diem of 
their services the sum of one dollar and fifty cents per day for forservices? 6 " 
for each day necessarily employed in the performance of their 
duties, the same to be audited by the Town Auditors and How paid, 
paid out of the town funds. (1) 

Sec. 80. All highways laid out by order of the Commis- R?ad opened 
sioners or Supervisors, on appeal, shall be opened within five years" 
years from the time of laying out the same. If not opened 
within the time aforesaid, the same shall be deemed to be when deemed 
vacated. (2) vacated ' 

Sec. 81. First — The Commissioners of Highways of each commission ers 
town shall annually ascertain as near as practicable how much be raised for 
money must be raised by tax on real and personal property roa s on y " 
for the making and repairing of roads, only, to any amount 
they may deem necessary, not exceeding forty cents on each Not exceeding 
one hundred dollars' worth as valued on the assessment roll of 
the previous year, and certify the same as hereinafter provided : 
Provided, That the tax on the property, levied for road pur- erty V tax7n rop " 
poses, lying within an incorporated village, town or city, in villages, ete., 
which the streets and alleys are under the care of the corpor- treasurer. 
ation, shall be paid over to the treasurer of such village, town 
or city to be appropriated to the improvement of roads, streets 
and bridges, either within or without said village, town or city 
and within the township, under the direction of the corporate 
authorities of such village, town or city: Provided J urther, Proviso— 
that when any of said tax is expended beyond the limits of consent - 
said village, town or city, it shall be with the consent of the 
road commissioners of the township. (3) 

Second — They- shall annually ascertain, as near as practi- Estimate tax. 
cable, how much money must he raised by tax *on real and 

action against a corporation, responsible or irresponsible, for his damages. This 
would be to take his property without fijst making compensation, and would be a 
plain violation of a constitutional right. Under the peremptory writ awarded in this 
case, if the damages have not been paid or released by the owners of the land, it 
would be the duty of the commissioners of highways to tender such damages before 
proceeding to open the road. It was therefore material that the relators should aver 
in their petition, and prove, that the damages which had been assessed to the land 
owners had eith.-r been paid or released, or that there was money in the town treas- 
ury with which to pay the same, or that such funds were otherwise under the con- 
trol of the commissioners. 

(1) It would seem to be but a fair construction of the law that the com- 
missioners of highways should be allowed a reasonable compensation for their ex- 
penses in addition to the amount allowed per day. They would scarcely be expected 
to travel over the township on foot, hence will necessarily incur the expense of some 
mode of conveyance. 

(2) See ante, sec. 24, p. 121. Proviso and note. 

(3) It is proper that the action of the commissioners of highway «> in ascer- 
taining the amount of money to be raised in the town by taxation for roads, bridges 
and other purposes, should be reduced to writing, and placed on file, and preserved 
by their treasurer. The following may be the form of their determination in case 
of roads : 



168 ROADS AND BRIDGES. [DIV. IT. 

For bridges, personal property, for the making and repairing of bridges, 

the payment of damages, by reason of the opening, altering 

and laying out of new roads, the purchase of the necessary 

tools, implements and machinery for working roads ; the pur- 

For purchasing chase of the necessary materials for the building or repairing 

materials, etc. Q f roa( j s an( j bridges during the ensuing year ; and for the 

Paymenrof payment of any outstanding orders drawn by the commis- 

<°rders U mg sioners on their treasurer, and shall levy a tax on all the 

real and personal property in said town not exceeding forty 

io°ce e rfts eeding ( 40 ) cents on the one nundred dollars ($100). And they 

shall give to the supervisor of the township, and in Cook 

statement of county to the county board, a statement of the amount as 

tax submitted -t -, P • i i /* 1 ^ i i 

to county herein before provided tor, necessary to be raised, signed by 
said commissioners or a majority of them, on or before the 
Tuesday next preceding the annual September meeting of the 
Board of Supervisors, or the county board of Cook county, 
who shall cause to be submitted to said board for their action at 
such September meeting of said board, and said board shall cause 

Extending tax. the same to be extended on the tax books. (1) 

Sec. 82. According to the amount certified as aforesaid, 

How extended, the County Clerk, when making out the tax books for State 
and county taxes for the Collector, shall extend the necessary 

cofumns tax * n a se P arate column against each tax payer's name, or tax- 

. able property, as other taxes are extended, which shall be col- 
lected the same as State and county taxes. 

Form of Determination of Commissiojiers of Higlitvays of amount to 
he raised by Tax for Making and Repairing Roads only. 
County, 



Town of 

The commissioners of highways of said town of , having pro- 
vided to ascertain as near as practicable how much money must be raised 
by tax on real and personal property for making and repairing of roads 

only, in said town, have ascertained and determined the same to be 

cents on each one hundred dollars worth, as valued on the assessment roll 
of the previous year. The sum total deemed necessary being dol- 
lars, which said amount is levied accordingly. 

Witness our hands, this day of , 18 — . 

R. P., ) Commissioners 
J. K., [ of 

L. M., ) Highways. 

Hie commissioners should ascertain the total amount required for road 
purposes, and then fix the per cent, to be levied, not exceeding forty cents, neces- 
sary to produce the sum required. 

(1) Form of Determination by Commissioners of Highways of amount 
necessary to be raised by Taxation for Bridge and other purposes. 



County, 



Town of 



-. 



The commissioners of highways of said town of having pro- 
ceeded to ascertain, as near as practicable, how much money must be 



DIV. II.] MISCELLANEOUS PROVISIONS. 169 

Sec. 83. It shall be the duty of the County Clerk to make certificate of 
out and deliver, on demand, to the Treasurer of the Commis-ievy. 
Doners of Highways a certificate of the aggregate amount of 
levied and placed upon the tax books. 



raised in said town by tax on real and personal property for the purposes 
following- during- the ensuing year, as required by law, have ascertained 
and determined the same to be as follows, to wit: 

1 . For the making and repairing of bridges $100 

2. For the payment of damages by reason of the opening, alter- 

ing and laying out of new roads 200 

3. For the purchase of the necessary tools, implements and ma- 

chinery for working roads 100 

4. For the purchase of the necessary material for building and re- 

pairing roads and bridges during the ensuing year '. . . . 200 

5. For the payment of outstanding orders drawn by the commis- 

sioners on their treasurer 200 

Making the total amount for purposes aforesaid $800 

For raising of which amount a tax is levied on all the real and per- 
sonal property in said town, of cents on the one hundred dollars. 

Witness the hands of said commissioners of highways, this day 

of , A. D. 18— . 

A. B., ) Commissioners 
CD., [ of 

E. F., ) Highways. 
Form of Statement oy Commissioners of Highways of amount necessary 
for Boads, Bridges and other purposes. 

To the supervisor of the town of , in the county of [or County 

Board of Cook county] : 
The amount of money necessary to be raised by tax on the real and per- 
sonal property of the town of , in the county of , as ascertained 

by the commissioners of highways, the present year, for making and 

repairing of roads only, is dollars, Requiring a tax of cents on 

each one hundred dollars worth, as valued on the assessment roll of the 
previous year. 

The amount of money necessary to be raised by tax on the real and 
personal property of said town : 

For making and repairing bridges, is $100 

For payment of damages by reason of the opening, altering and lay- 
ing out of new roads, is 200 

For purchase of the necessary tools, implements and machinery for 

working roads, is 100 

For purchase of the necessary materials for the building and repair- 
ing of roads and bridges during the ensuing year, is 200 

For the payment of outstanding orders drawn by the commissioners 

on their treasurer, is 200 

Making total amount for bridges and other purposes $ Q 00 

For which a tax has been levied on all the real and personal property in 

said town, of cents on the one hundred dollars. 

Witness our hands, this day of , 18 — . 

A. B., ) Commissioners 
C. D., [ of 

E. F., ) Highways. 

A tax for constructing and repairing roads, bridges and causeways to the 
extent allowed by law, may be levied by direction of the electors at town meeting. 
fcee ante Div. 1, Sec. 3. The* commissioners of highways are also authorized to levy a 



170 



ROADS AND BRIDGES. 



[DIV. II. 



Sec. 84. The tax so collected shall be paid to the Treas- 
urer of the Commissioners of Highways, (except as provided 
in the first clause of Section 81 of this act) by the collector as 
fast as the same is collected, except such rate per cent, as shall 
be allowed for collecting the same. 

Sec. 85. The Commissioners of Highways shall furnish to 
the Clerk of the County County Court, previous to the first 
day of October in each year, a list of tax payers (alphabet- 
ically arranged) of each township. 

Sec. 86. Any tax or moneys collected by the township, or 
county collector of the various counties for road and bridge 
purposes under the provisions of an act entitled "An act in 
regard to roads and bridges," approved April 10, 1872, shall 
be paid by said collectors to the Treasurer of Commissioners of 
Highways. Said money shall be used by said Commissioners 
in improving the roads and bridges in their respective towns. 

Sec. 87. If the Commissioners of Highways shall refuse or 
neglect to perform any of the duties enjoined on them by this 
act, they shall severally forfeit not less than ten dollars nor 
more than fifty dollars, and may be proceeded against, severally 
or jointly, for the recovery of such forfeiture belore any Justice 
of the Peace in the proper county having jurisdiction. (1) 



To whom tax 
paid when 
collected. 



List of tax- 
payers. 



How tax to be 
used under law 
of 1872. 



Neglect of duty 
—penalty. 

Forfeiture. 

Justices have 
jurisdiction. 



tax for the repairing of roads to an amount not exceeding forty cents on each one 
hundred dollars worth of property. If the town meeting fails to make such levy, it 
can be done by the commissioners of highways ; but when the levy is made in one 
mode, it cannot be done in the other. And it seems that a levy so made by the elec- 
tors at town meeting is not invalidated because the town clerk fails to certify it to 
the county clerk within the time fixed by law. Thatcher v. The People ex rel., 79 111. 
R., 597. 

Under the road latv as formerly existing it was Jield that the commissioners 
of highways being powerless to borrow money, were equally so to contract indebt- 
edness, except that they may have such work done and rep'airs made, and give or- 
ders oh their treasurer to the extent and not beyond the amount of tax already 
actually levied by them. After this levy they mig"ht incur indebtedness in the dis"- 
charge of their duties, before its collection ; that the commissioners had no legal 
power to incur indebtedness for road and bridge purposes, in any fiscal year, beyond 
the amount of taxes already levied for that year. In other words, they could in no 
one year expend lawfully more than the tax levied for that year. Commissioners of 
Highways v. Newell et al., 80 111. R., 587. Butthe present road law, sec. 81, paragraph 
second, provides for levying a tax for the payment of outstanding oriers drawn by 
the commissioners on, their treasurer, contemplating that orders will be draAvn for 
liabilities incurred before the levy of a tax therefor. In the case of the Commis- 
sioners of Highways v. Newell et at., the court held that as the road law then in force, 
Sec. 116., provided that orders drawn by the commissioners of highways were made 
receivable for taxes, that there was an "implied authority to issue such'orders before 
the money was actually collected or paid to their treasurer. By the same course of 
reasoning", authority to levy a tax to raise money to pay outstanding orders issued, 
would imply authority to create a liability and issue orders therefor, before the levy 
of the tax. " But in no event it would seem can the liabilities of the town, under 
the road law, exceed the amount of money authorized to be raised by taxation in 
any one year. In the case above cited, however, two of the judges dissented — 
Judges Bkeese and Sheldon— declaring in emphatic terms, that in their opinion a 
proper construction of the statute did not give power to these petty township offi- 
cers to incur liabilities of this kind, unless the money is actually on hand for that 
purpose. 

(1) An overseer of highways is not liable to a private action for any error of 
judgment in the execution of his trust. He is only responsible for any neglect or 
refusal under the section of the act which subjects him in such a case to a penalty. 
Freeman v. Cornwell, 10 Johns. R., 470. If, however, he acts maliciously or oppres- 
sively, it is otherwise. 5 Johns. R., 125. 



PIV. II.] RECORDING PLAT OF HIGHWAYS. 171 

Sec. 88. That an act entitled "An act in regard to roads Act of 1872 
and bridges," approved April 10, 1872, and in force August PClJea 
15, 187^, so far as the same relates to counties under town- 
ship organization, and also all other acts and parts of acts 
inconsistent herewith, be and the same are hereby repealed : 
Provided, That the repeal of said act shall not affect any suit proviso— not 
or proceeding pending, or impair any right existing, at the peeing! 1 
time this act shall take effect. 

Sec. 89. That any act or part of act inconsistent with this Repeal, 
act, be and the same is hereby repealed. 

RECORDING PLAT OF HIGHWAYS. 

Sec. 124a. Whenever any highway, road, street, alley, when highway 
public ground, toll road, railroad or canal is laid out, located, k. 1 ^ ^. 
opened, widened or extended, or the location thereof altered, altered, plat to 
it shall be the duty of the commissioners, authorities, officers, recorder's 
persons or corporations, public or private, laying out, locating, office - 
opening, widening, extending or altering the same, to cause a 
plat thereof showing the width, courses and extent thereof, and 1874. 
making such reference to known and established corners or 
monuments that the location thereof may be ascertained to be 
made and recorded in the office of the recorder of the county 
in which the premises taken or used for the same or any part 
thereof are situated, within six months after such highway, within six 
road, street, alley, public ground, toll road, railroad or canal is months - 
laid out, located, opened, widened or extended, or the location 
thereof altered; and when any highway, road, street, alley, 
public ground, toll road, railroad or canal is vacated, the order, 
ordinance or other declaration vacating the same shall be in Road vacated 
like manner recorded. This act shall not be construed to alter t0 be recorded - 
or affect any law specifically providing for the recording of any 
such plat, or to require the same to be recorded sooner than is 
so specifically provided ; except that any requirements to record 
such plat in any other place than is provided herein shall not 
excuse the parties from complying with this act. Whoever Penalty for 
shall refuse or neglect to comply with this section shall forfeit uegec 
twenty-five dollars, and the like sum for every month he shall 
continue in such refusal or neglect after conviction therefor, to 
be recovered before any justice of the peace of the county, in 
the name of the county, one-half to the use of the county, and 
the other half to the use of the person complaining. (1) 

(1) The above Sec, 124a, is Sec. 9 of the act in relation to town plats, in force July 
1, 1874. 



172 



ROADS AND BRIDGES. 



[DIV. II. 



VACATING HIGHWAYS. 



Sec. 1245. When any street, alley, lane or highway, or any 
when highway part thereof, has been or shall be vacated under or by virtue 
of any act of this State, or by order of the city council of any 
city, or trustees of any village or town, or by the commis- 
sioners of highways, county board, or other authority author- 
ized to vacate the same, the lot or tract of land immediately 
adjoining on either side shall extend to the central line of such 
street, alley, lane or highway, or part thereof so vacated, unless 
otherwise specially provided in the act, ordinance or order 
vacating the same ; unless in consequence of more of the land 
for such street, alley, lane or highway having been contributed 
from the land on one side thereof than the other, such division 
is inequitable, in which case the street, alley, lane or highway 
so vacated shall be divided according to the equities of the 
adjoining owners. (2) 



vacated, land 
reverts to 
adjoining lot. 



1874. 



Unless other- 
wise provided 



(2) The above Sec, 124&, is Sec' 2 of the act in relation to vacation of streets, alleys 
and highways, approved March 24, and in force July 1, 1874. 



PIV. III.] RAILROAD CROSSINGS AND REGULATIONS. 17 : > 

DIVISION III. 

RAILROAD CROSSINGS AND REGULATIONS. (1) 

Section 5. Every railroad corporation shall cause boards, Boards of 
well supported by posts or otherwise, to be placed and con- JetupS ° 
stantly maintained upon each public road or street where the crossings - 
same is crossed by its railroad on the same level. Said boards 
shall be elevated so as not to obstruct the travel, and to be 
easily seen by travelers. On each side of said boards shall be 
painted in capital letters, of at least the size of nine inches 
each, the words "Railroad Crossing," or, "Look out for the 
cars." This section shall not apply to streets in cities or Exception as to 

r ^ J j . cities and 

incorporated towns or villages, unless such railroad corporation villages. 
shall be required to put up such boards by the corporate author- 
ities of such cities, towns or villages : Provided, that when Proviso. 
warning boards have already been erected, under existing laws, 
the maintenance of the same shall be a sufficient compliance 
with the requirements of this section. 

Sec. 6. Every railroad corporation shall cause a bell, of at Provide bell 
least thirty pounds' weight, and a steam-whistle, placed and whistle. 
kept on each locomotive engine, and shall cause the same to be 
rung or whistled by the engineer or fireman, at the distance of 
at least eighty rods from the place where the railroad crosses 
or intersects any public highway, and shall be kept ringing or 
whistling until such highway is reached. 

Sec. 7. If any engineer on any railroad shall start his train Jl"^ f £l in 
o,t any station, or within any city, incorporated town or village, without ringing 
without ringing the bell or sounding the whistle a reasonable ing whistle. 
time before starting, he shall forfeit a sum not less than ten 
dollars, nor more than one hundred dollars, to be recovered in 
an action of debt in the name of the people of the State of 
Illinois, and such corporation shall also forfeit a like sum, to 
be recovered in the same manner. 

Sec. 8. Hereafter, at all of the railroad crossings of high- ^f^h^v"?! 
ways and streets in this State, the several railroad corporations constructed 
in this State shall construct and maintain said crossings, and 
the approaches thereto, within their respective rights of way, so 
that at all times they shall be safe as to persons and property. 

Sec. 9. Whenever any railroad shall neglect to construct Neglect to 
and maintain any of its crossings and approaches, as provided 
in section eight of this act, it shall be the duty of the proper 
public authorities, having the charge of such highways or 

(1) The sections under the above head, concerning railroad crossings and regula- 
tions, are a part of the general act regulating railroads, approved March 31, and in 
force July 1, 1S74. 



at 
s to be 



174 ROADS AXD BRIDGES. [dIV. III. 

Authorities streets, to notifv, in writing, the nearest agent of said railroad 



notify agent. 



'j ^^ " w ""jj ■" """"ei 



corporation of the condition of said crossing or approaches, 
and direct the same to be constructed, altered or repaired in 
such manner as they shall deem necessary for the safety of 
persons and property. (1) 
if railroads Sec. 10. If any railroad corporation of this State shall, after 

antnoritiesmay having been notified, as provided in section nine of this act, 
construct. neglect or refuse to construct, alter or repair such crossing or 
approaches within thirty days after such notice, then the said 
public authorities shall forthwith cause such construction, alter- 
ation or repairs to be made. 

******* 
nagmen Sec, 35. In all cases where the public authorities having 

street crossings, charge of any street over which there shall be a railroad cross- 
ing, shall notify any jfgent of the corporation owning, using 
or operating such railroad, that a flagman is necessary at such 
crossing, it shall be the duty of such railroad company, within 
sixty days thereafter, to place and retain a flagman at such 
crossing, who shall perform the duties usually required of flag- 
man ; and such flagman is hereby empowered to stop any and 
all persons from crossing a railroad track when, in his opinion, 
there is danger from approaching trains or locomotive engines; 
and any railroad company refusing or neglecting to place flag- 
men, as required by this section, shall be liable to a fine of one 
hundred dollars per day for every day they shall neglect or 
refuse to do so ; and it is hereby made the duty of such public 
authorities having charge of such street, to enforce the pay- 
ment of such fine, by suit, in the name of the town or munici- 

(1) Form of Notice by Commissioners of Hightvays to Railroad Agent for 

repair of Crossing. 
To A. B., nearest agent of the railroad corporation : 

In pursuance of the statute in such cases made and provided, the 

commissioners of highways of the town of , in the county of 

, and State of Illinois, being the proper public authorities 

having charge of the highways in said town, do hereby notify you, 
as the nearest agent of the above-named railroad corporation, that 
the crossing [or approaches to the crossing] of said railroad, at the 

point where the same intersects the highway leading from to 

[give description or location of the crossing with certainty, so the 

place may be understood] is out of repair [bating vjherein; or, if the 
crossing or approaches have not been constructed, state accordingly], and 
said commissioners do direct that the same be repaired [or con- 
structed or altered] in manner following [state what is required]. 

Dated at , this day of , IS — . 

£• ?•' ) Corn's of 
G H* 1 ^i&bways. 



DIV. III.] RAILROAD CROSSINGS AND REGULATIONS. 175 

pal corporation wherein such crossing shall be situate, before 
any court of competent jurisdiction in the county, and the 
prosecuting attorney shall attend to the prosecution of all 
suits as directed by said public authorities. All the moneys 
collected under the provisions of this act shall be paid into the 
iry of the town or municipal corporation in whose name 
suit shall have been brought.(l) 
Sec. 36. If any railroad corporation, or any of jts agents, penalty for 
servants or employees, shall violate any of the provisions of Jro^sions of 
this act, such corporation, agent, servant or employee shall, thlsact - 
severally, unless otherwise herein provided, be liable to a fine 
of not less than ten dollars, nor more than two hundred dol- 
lars, to be recovered in an action of debt, in the name of the 
people of the State of Illinois, for the use of any person 
aggrieved, before any court of competent jurisdiction. 

he above section relates only to streets, and not to ordinary highways, or 
country roads. 



DIV. IV.] FENCES. 



DIVISION IV. 

FENCES. a™. 

In* Force 

Section 1. In counties under township organization the f^ * ' 1 ^ 4 ; 
town assessor and commissioners of highways shall be ex officio 
fence viewers in their respective towns. In counties not under Fence viewers. 
township organization the county board, at their annual meet- 
ing in December, shall appoint three fence viewers in each Appointment. 
precinct, who shall hold their office for one year, and until 
their successors are appointed. 

Sec. 2. Fences four and one-half feet high, and in good what is a law- 

ful fence 

repair, consisting of rails, timber, boards, stone, hedges, or 
whatever the fence viewers of the town or precinct where the 
same shall lie shall consider equivalent thereto, shall be deemed 
legal and sufficient fences : Provided, that in counties under Proviso, 
township organization the electors at any annual town meeting power of town 
may determine what shall constitute a legal fence in the town, Slunty^oards. 
and in counties not under township organization the power to 
regulate the height of fences shall be vested in the county 
board. 

Sec. 3. Where two or more persons shall have lands adjoin- Division fences, 
ing, each of them shall make and maintain a just proportion 
of the division fence between them, except the owner of either 
of the adjoining lands shall choose to let such land lie open: 
JProvided, that where owners of adjoining lands, by mutual Proviso, 
agreement, have heretofore built, or may hereafter build, their 
respective portions of a partition fence, it shall not be lawful 
for either to remove his part of said fence, so long as he may Moving par- 
crop or use such lands for farm purposes, or without giving the tltI0n lence ' 

r party one year's notice, in writing, of his intention to^{J?® in 
move his portion of the fence. (1) 

(l) Adjoining metiers should endeavor, if possible, to mutually agree as to the 
proportion that each shall r^aintain of the division fence between their adjoining 
lands : the agreement should be reduced to writing, each party taking a copy. The 
following is suggested as a convenient form for such agreement: 

Form of Agreement to divide and maintain a division fence between adjoin- 
ing owners. 

This agreement, made this day of , A.D. one thousand 

eight hundred and , between A. B., of the town of , in the 

county of , and the State of Illinois, of the one part, and C. D., of 

the same town, of the other part, witnesse'h, that whereas the said 
A. B. has heretofore erected a fence on the division line between his 
lands and the lands of the said C. D , which said fence commences at 
[describe the location of the fence]. And whereas, after the erection of 
said fence, the said C. D. inclosed a field on the east side of said divi- 

12 



178 FENCES. [DIV. IV. 

when owner Sec. 4. When any person shall have chosen to let his land 
shall pay ' lie open, if he shall afterward inclose the same, or if any owner 
owner^Fopor- °f ^ anc ^ adjoining upon the in closure of another shall inclose 

tipnof value of the same upon the inclosure of another, he shall refund to the 
division fence. _ . r .. . . . , . . « . 

owner ot the adjoining lands a just proportion ot the value at 

that time of any division fence that shall have been made by 

such adjoining owner, if the same shall be a ditch or hedge, 

sion line, so that rods of said fence, commencing at the, etc. 

[describe the location of said portion of the fence], has become and now 
is a partition fence between the fields of the said A. B. and C. D. ; and 

whereas, the said C. D. has paid to the said A. B. dollars, being 

in full for one-half of the value of said rods offence, it is there- 
fore agreed between the parties hereto that the rods offence on 

the north part of said rods shall be well and sufficiently main- 
tained and kept in repair by the said A. B., and the remainder of said 

rods shall be kept in like repair by the said C. D. 

In witness whereof, the said parties have hereunto set their hands 
and seals the day and year first above written. 

A. B. [seal.] 
C. D. [seal.] 

Form of Notice by'adjoining ovmer of his intention to remove his share of 

partition fence. 
To H. B. : 

Sir : — You will take notice that I intend to remove my portion of 
the partition fence on the line of our adjoining lands [describe the loca- 
tion of the fence with reasonable certainty'], that my said lands may here- 
after lie open, and that I shall remove the same after the expiration 
of one year from the date of your receiving this notice. 

Dated this day of , A.D. 18—. J. G. 

It is the intention of the lam that only those having inclosed land? adjoining 
shall be required to maintain partition fences between their own and the next ad- 
joining inclosures. If at the time the fence viewers act in determining that one of 
the occupants of adjoining lands shall erect and maintain or pay for a part of a divi- 
sion fence, the lands of such party are uninclosed, their proceedings are without 
jurisdiction and void. Bechtel v. Neilson et al., 19 Wis. R., 49. And unless the pro- 
ceedings are valid, the plaintiff cannot recover under the statute for building the 
defendant's part of the fence. Fairbanks v. Childs, 44 N. H. Rep. R., 458. 

Where the owners of two adjoining tracts of land join their fenees so as to 
have but one field in common, and no division fences built, it is the business of one 
to see that the fence of the other is sufficient to turn ordinary stock. Stoner et al. v. 
Shugart, Jr., 45 111 R., 77. See Seeley v. Peters, 5 Gilm. R., 130. 

The law in relation to partition fences does not apply to ornamentarpartition 
fences between city and village lots, but to the ordinary fences of the country, such 
as are usually built on agricultural lands. Brooks v. Allen, 1 Wis. R., 127. 

A partition fence, whether existing by agreement, by acquiescence, or under 
the statute, cannot be removed until the parties interested in its remaining, are 
properly notified of the intended removal. McCormick v. Tate, 20 111. R., 334. 

Where a party removes a partition fence wrongfully, and his stock enters upon 
another's premises, he will be liable. Stoner et al. v. Shugart, Jr., 45 111. R., 77. 

A person is not bound to maintain partition fences against the cattle of an- 
other who is not an adjoining owner or occupant. Aylesworth v. Herringion, 17 Mich. 
K., 417. 

The general rale that a party who is the owner of personal property, which is 
upon the land of another, cannot therefore enter to take it away, does not apply to 
an entrv necessary to enable a person to make his part of a fence. As the law re- 
quires each owner to make his portion of the fence, this duty carries with it the 
right to such necessary occupation for the time being as is required to enable him 
to comply. Carpenter v Halsey. fiO Barb. R., 45. 

The legislature of a State has the constitutional poiver to regulate, by stat- 
ute, the relative rights and responsibilities of the proprietors of inclosed land and 
the owners of stock going at large or kept in adjacent inclosures Wills v. 11 alters, 
5 Bush. (Ky.). 351. 



DIV. IV.] EXAMINATION OF FENCES. 179 

and if the same be not a ditch or hedge, he shall immediately 
build his proportion of such division fence, or refund to said 
adjoining owner a just proportion of the value at that time of 
such fence. 

Sec. 5. The value of such fence, and the proportion thereof value and 
to be paid by such person, and the proportion of the division determined by 
fence to be made and maintained by him, in case of his inclos- fence viewers - 
ing his land, shall be determined by two fence viewers of the 
town, in counties under township organization, and in other 
counties by any two fence viewers of the precinct.(l) 

Sec. 6. If any person neglects to repair or rebuild a division Neglect to 
fence, or portion thereof which he ought to maintain, any two ftv^e: fence " 
fence viewers of the town or precinct, as the case may be, shall, JSrect^ame to 
on complaint by the party aggrieved, after giving due notice °e done, 
to each party, examine such fence, and if they deem the same 
to be insufficient, they shall so notify the delinquent party, and 
direct him to repair or rebuild the same within such time as 
they may deem reasonable. (2) 

(1) Fence viewers are made the sole judges in controversies concerning divi- 
sion fences, and of the sufficiency of such fences, as well as of all other fences, and 
are to decide by direct examination of the premises. Fox v. Beebe, 24 Conn. R., 271. 

It is held that any person occupying land, and interested in the making and main- 
taining a division fence, be his estate or interest in the premises what it may, is 
entitled to avail himself of the provisions of the statute in reference to division 
fences • the remedy is.not limited to the owner of the fee. Bronk v. Becker, 17 Wend., 
320, 

(2) Tlie complaint to the fence vietvers by a party aggrieved is not required to 
be in writing. It will be proper, however, that the notice to the parties- by the fence 
viewers, and subsequent proceedings, should be reduced to writing. The proceed- 
ings of fence viewers should be treated, as to matters of form, with at least the 
indulgence extender! to proceedings before justices of the peace; and where it 
appeared that a party was notified verbally, and by the opposite party, and was 
present at the meeting of the fence viewers, and made no objection at that time, the 
notice was held sufficient. Talbot v. Blacklege, 22 Iowa R., 572. 

Form of Notice to Parties by two Fence Viewers for examination of Fence. 

To CD.: 

You are hereby notified that complaint having been made by A. B. 

to the undersigned, fence viewers of the town of , that you have 

neglected to [state what is complained of], and that we shall on the 

day of , 18 — , at the hour of — o'clock, — M., proceed and 

examine such fence with a view to such action in the premises as the 
case shall require. 

Dated this day of , 18—. 

L. M. \ Fence 
E.S. /Viewers. 

Form of Direction by Fence Viewers to repair or rebuild Fence. 
County, 1 

Town of . J 

Complaint having been made by A. B. to the undersigned, fence 

viewers of said town of , that [state the complaint as in the notice] 

we did, having given due notice thereof to each party in the prem- 
ises, proceed, on the day of , 18 — and examine such 



180 



FENCES. 



[DIV. IV. 



Disputes Sec. 7. If disputes arise between the owners of adjoining 

owners settled lands, concerning the proportion of fence to be made or main- 
viewers 6 tained by either of them, such disputes shall be settled by any 
two of the fence viewers of the town or precinct, as the case 
may be, and in such cases it shall be the duty of the two fence 
viewers to distinctly mark and define the proportion of the 
fence to be made or maintained by each.(l) 

Sec. 8. When any of the above mentioned matters shall oe 
submitted to fence viewers, each party shall choose one ; and 
if either neglect, after eight days' notice, in writing, to make 
such choice, the other party may select both. And for all pur- 
poses of notice under this act, it shall be sufficient to notify the 
tenant or person in possession of said adjoining premises, when 



Each party 
choose one 
fence viewer. 



Notice. 



fence, and did and do deem the same to be insufficient, and do direct 
that [state the direction or order made]. 

Witness our hands, this day of , 18 — . 

L. M. ") Fence 
R. S. / Viewers. 

TJie fence viewers, in their proceedings on the complaint of a person 
aggrieved, would undoubtedly be confined to the subject of the complaint. If that 
related to the repairing of a fence, they probably would not have authority to assign 
to the adjoining occupants their respective share of the fence, and direct the rebuild- 
ing within a specified time. Sears v. Charlemont, 6 Allen R., (Mass.) 437. 

The application or complaint to the fence viewers may include the whole subject 
in controversy ; but before a party can be affected by the acts or decisions of the 
fence viewers, he must have notice. Fairbanks v. Childs. 44 X. H. R., 458. 

A good and sufficient fence must be not merely one which will turn ordinary 
stock, but one that will turn stock even though, to some extent, unruly. C.&A. 
E. R. Co. v. Utley, 39 111. R., 411. 

The common law rule requiring the owner of stock to keep it upon his own 
land has been recognized, in some c -ses, in this State, as governing inside or division 
fences. Headen v. Rust. 39 111. R., 186. 

Where, in a field occupied bg several persons, there is an inner fence, one of 
the occupants of the field cannot remove such inner fence at pleasure, though he 
may be the owner thereof, without rendering himself liable to his co occupant for 
any damages resulting therefrom. Nor is it any defense to an action of trespass, 
growing out of the removal of the inner fence, to show that the complaining party 
was bound to keep the outer fence in repair, or that he might have repaired the 
same at small expense. Buckmasterx. Cool, 12 111. R., 74. 

In an action to recover for the trespasses committed in the field of the plain- 
tiff by the hogs of the defendant, it appeared the hogs entered the plaintiff's field 
through a division fence from an adjoining field owned by the defendant, such divi- 
sion fence being owned entirely by the plaintiff. Held, the fence was not a partition 
fence under the statute, hence, the question of its sufficiency was not involved. 
Under such circumstances the rule of the common law prevails, that each man is 
bound to take care of and keep his animals on his own land. JlcBride v. Lyad, 55 
111. R., 411. 

(1) WJiere. a dispute arises as to the proportion of a fence to be maintained 
by each party, it may be settled by fence viewers, even where there has been an 
agreement on the subject. Burger v. Kortwright, 4 Johns. R., 414. 

The decision of the fence viewers as to the proportion of fence of each party, is 
not neoessarv where there is no dispute between them. Willoughby v. Cotton, 9 
Johns. R., 136. 

The fence viewers have authority to determine what portion of a division fence 
shall be paid for or repaired by an adjoining occupant, but over the payment of the 
same so ascertained they have no control. In a suit for money awarded by fence 
viewers to be due from'one adjoining proprietor to another for a partition fence 
voluntarily built by the latter, evidence that he was paid for the same by the person 
who subsequentlvVonveved the adjoining premises to the former, is admissible. 
Butler v. Barlow. 2 Wis. R.. 10. 

It is held that an appraisal by fence viewers does not prevent a party from proving 
by other evidence the expense of building the adjoining owner's portion of a divi- 
sion fence in a suit brought to recover the cost of such portion. Perkins v. Perkins, 
44 Barb. R., 134. 



DIV. IV.] EXAMINATION OF FENCES. 181 

the owner thereof is not a resident of the town in which such 
fences are situated. (1) 

Sec. 9. The two fence viewers so chosen shall examine the Fence viewers 
premises, and hear the allegations of the parties. In case of iJ^Jof 
their disagreement, they shall select another fence viewer to act disagreement. 
with them ; and the decision of any two of them shall be final 
upon the parties to such dispute, and upon all parties holding 
under them. 

Sec. 10. The decision of the fence viewers shall be reduced Decision 
to writing; shall contain a description of the fence, and of the writing? t0 
proportion to be maintained by each, and their decision upon 

(1) Form of Notice to adjoining Owners to choose Fence Viewers to settle 

dispute. 
To R. R. : 

Sir : — A dispute having arisen between you and myself, being the 

owners of adjoining lands in the town of , in the county of 

, and State of Illinois, concerning the proportion of division 

fence to be made [or maintained] by each of us upon the line of our 
said lands, your land in question being known as [describe the land 
with reasonable certainty], and mine as [describe the land]. I have 
chosen J. W., one of the fence viewers of said town, and do hereby 
give notice to you to proceed and choose another of the fence view- 
ers of said town, to the end that said dispute between us may be 
settled and decided by the said fence viewers, and that if you shall 
neglect to make such choice for eight days after receiving this notice, 
I shall make suclrchoice myself, and proceed to have said matter in 
dispute adjusted by the fence viewers thus chosen by me, the same 
as if one of them had been chosen by you. 

Yours, etc., J. E. 

Dated, etc. 

Form of Submission of Dispute between adjoining Owners to two Fence 

Viewers. 

To P. T. and J. G., two of the fence view T ers of the town of . 

in the county of , and State of Illinois: 

A dispute having arisen between the undersigned, A. W. and B. L., 

owners of adjoining lands in said town of , concerning the 

proportion of division fence to be made [or maintained] by each on 
the line of their respective lands, the land of the said A. ^. being 
described as follows: [describe the land with reasonable certainty,) and 
that of the said B. L. being described as follows: [describe the land]. 
The said A. W. has therefore chosen you the said P. T., and the said 
B. L. has chosen you the said J. G., as two fence viewers of said town 

of , to the end that you may proceed to settle and decide said 

matter of dispute : and the undersigned do hereby submit said mat- 
ter of dispute to you the said fence viewers, and request that you 
will proceed according to law, and settle and decide the same as shall 
seem to vou just and rijrht. 

Dated this day of , 18— 'A. W. 

B. L. 

If hut one fence viewer should net by agreement of the parties.it is appre- 
hended that his action and determination would be good and binding. Kelloaa v. 
Brown, 32 Conn. R., 108. 



182 



FENCES. 



[DIV. IV. 



Decision 
filed with 
town clerk. 



Neglect to 
repair fence. 



Notice in 
writing. 



any other point in dispute between the parties, submitted to 
them as aforesaid ; and shall be forthwith filed in the office of 
the town clerk, or in the office of the county clerk in counties 
which shall not have adopted township organization. (1) 

Sec. 11. If any person who is liable to contribute to the 
erection or reparation of a division fence shall neglect or refuse 
to make or repair his proportion of such fence, the party 
injured, after giving sixty days' notice, in writing, that a new 
fence should be erected, or ten days' notice, in writing, that 
the reparation of such fence is necessary, may make or repair 



(1) Form of Decision of Fence Viewers in relation to Dispute between 
adjoining Owners. 
County, 



Town of 

Whereas, we, the undersigned, two of the fence viewers of said 

town of , having been chosen by R. V. and J. J., owners of 

adjoining lands in said town, for the purpose of settling and deciding 
a dispute which has arisen between them concerning the proportion 
of division fence to be made lor maintained] by each of them, on 
the line between their said lands, the lands in question being 
described as follows: [describe the land of each], and the said R. V. 

and J. J. having, on the day of , 18 — , submitted the said 

matter in dispute to us, for our settlement and decision, we did, on 

the day of , 18 — , proceed and examine the premises, and 

hear the allegations of the parties. The said fence we find to be 
a rail fence, commonly called a Virginia or worm fence, running north 
and south, in length one hundred and sixty rods, and being the 
division fence between the lands above described, that the same w r as 
originally erected jointly by the parties, and divided equally between 
them, the said J. J. taking the south half thereof for his portion, by 
agreement, and that the said J. J. now neglects and refuses to keep 
his portion of the same in proper repair [or as the Gase may be]. We 
do, therefore, adjudge and determine that [conclude with the determina- 
tion of the fence viewers according to the fact]. 

Given under our hands, this day of , A.D. 18 — . 

L. P. \ Fence 
J. R. j Viewers. 

Form of Decision of Fence Viewers, where two cannot agree, and another 

is selected. 



County, 



Town of 



..} 



A dispute having arisen between A. B. and C D., tw r o owners of 

adjoining lands in said town of , concerning the proportion of 

division fence to be made [or maintained] by each of them on the 
line of their said lands, the land of the said A. B. being described as 
follows: [describe the land or field in question], and the lands of said 
C. D. being described as follows : [describe the land or field], the said 

parties did, on the day of , 18—, submit the said matter 

in dispute to the undersigned, W. S. and N. W., two of the fence 

viewers of said town of , for their settlement and decision, the 

said parties having chosen said fence viewers, for that purpose, the 

said fence viewers did, therefore, on the day of , 18—, 

proceed and examine the premises and hear the allegations and 



DIV. IV.] LIABILITY FOR DAMAGES. 183 

the same at the expense of the party so neglecting or refusing, party injured 
to be recovered from him, with costs of suit ; and the party so may repair - 
neglecting or refusing, after notice in writing, shall be liable 
to the party injured for all damages which shall thereby accrue, Damages, 
to be determined by any two fence viewers selected as above 
provided ; and the fence viewers shall reduce their appraise- 
ment of damages to writing, and sign the same.(l) 

proofs of the parties, and the said two fence viewers, being unable to 
agree in the premises, did select N. P., another fence viewer of said 
town, to act with them in making such settlement and decision ; and 
we, the undersigned, being now fully advised in the premises, do ad- 
judge and determine that [conclude according to the determination of the 
viewers] . 

Given under our hands, this day of , 18 — . 

Fence 
Viewers. 



10 — . 
W. S. ) 
N. W. [ 
N. P. J 



An assignment by fence viewers of only a part of a continuous line of par- 
tition fence is not for that reason invalid, neither party at the time requesting that 
the whole line be divided. After such assignment, duly made, the obligations of the 
parties are fixed to maintain the fence accordingly, and cannot be changed without 
consent by a subsequent view and division by the fence viewers of the whole con- 
tinuous line of partition fence. Alger v. Pool, 11 Cush. R., (Mass.) 450. 

A decision of fence viewers requiring the occupants of wiinclosed land to erect, 
maintain or pay for part of a division fence is void. The occupants of such lands 
are under no obligation to erect fences. Bechtel v. Neilson, 19 Wis., 49. 

(1) Form of Notice to adjoining Owner to contribute to erection or repar- 
ation of Division Fence. 

To S. R. : 

Sir : You are hereby notified to repair [or as the case may be] that 
portion of the division fence on the line between your land and 

mine, situate in the town of , and county of , according 

to the decision of J. L. and J. H., two of the fence viewers of said 

town, made on -the day of , 18 — , and filed in the office of 

the town clerk of said town, on the day of , 18 — , and that 

if you shall neglect to repair the same, agreeably to said decision, for 
the period of ten days from the date of receiving this notice, I shall 
proceed myself and repair said fence at your expense. 

Dated this day of , A.D. 18— 

L. N. 
Form of Appraisal of Damages by Fence Viewers, accruing to adjoining 
Owner, by reason of neglect to make or repair Fences. 



County, 



Town of .j ss - 

Whereas, we, the undersigned, two of the fence viewers of the 

said town of , having been chosen by P. B. and J. S., owners of 

adjoining lands in said town, for the -purpose of appraising the dam- 
ages claimed by the said P. B., and accruing to him in consequence 
of the neglect of the said J. S. to repair [or as the case may be] his 
proportion of a division fence mentioned and described in a certain 
decision made by [state by whom made, or if the fence has been divided by 

agreement, state that fact, and vary the form accordingly], on the day 

of , 18 — , and reduced to writing, and filed in the office of the 

town clerk of said town of . We did, on the day of , 



J- 84 FENCES. [DIV. IV. 

Snc<?is ivisi ° n ^ EC ' "^' ^ ienever a division fence shall be injured or 

destroyed, who destroyed by fire, floods or other casualty, the person bound to 

repair. ma k e an( j re p a i r SUCD . fence, or any part thereof, shall make or 

repair the same, or his just proportion thereof, within ten days 

after he shall be thereto required by any person interested 

therein — such requisition to be in writing, and signed by the 

party making the same.(l) 

Neglect to Sec. 13. If such person shall neglect or refuse to make or 

injured may 7 repair his proportion of such fence k>r the period of ten days 

repair. after such request, the party injured may make or repair the 

same at the expense of the party so refusing or neglecting, to 

be recovered, with costs of suit. 

Division fence Sec. 14. If any person is disposed to remove a division fence, 

removed after or part thereof, owned by him, and suffer his lands to lie open, 

notice,* S after having first given the adjoining owner one year's notice, 

18 — , proceed to examine the premises ; and after due inquiry and 
examination by us made, and having heard the allegations of the 
parties, we do determine that the said P. B. has sustained damages 
to his land, crops, fruit trees and shrubbery [or as the case may be] in 
. consequence of the neglect of the said J. S. to repair [or as the casa 
may be~\ his proportion of the division fence, as aforesaid : which 

damages we have ascertained, and do appraise at dollars. 

itness our hands, this day of , A.D. 18 — . 

P. S. \ Fence 
R. B. j Viewers. 

As to the extent and nature of damages which will come under the jurisdic- 
tion of fence viewers to appraise, it was held by the supreme court of New York, 
under a like provision of law, that fence viewers are authorized only to appraise 
damages sustained by the neglect or refusal of a party to make or maintain his pro- 
portion of a division'fence ; for ordinary injuries resulting from defective fences, 
such as tbe treading down and destruction of grass, corn, wheat and other crops, 
the extent of which can be ascertained upon view or by inspection ; and that they 
have not the right to appraise damages where the injury sustained is the death of 
cattle, caused by eating unripe corn, in the fields of a party who has neglected to 
keep his proportion of a division fence in repair. Clark v. Brown, 18 Wend., 213. 

The court for the correction of errors affirmed the judgment of the supreme court, 
but the members being equally divided in opinion, the judgment of affirmance has 
not been considered as settling the case. lb. 

The appraisal of damages, if properly made, would probably be conclusive. 
Harriman v. Fifield, 36 Vt. R., 341. 

Where a party teas ordered to make a division fence, but the height was not 
specified, in default of the order the fence was made by the adjoining owner, it was 
held that he might recover for making the fence, although the voters of the town 
had decided that all fences should be four feet and six inches high, and although 
the fence was not of the height required. The question was, whether the fence was 
sufficient for the purposes for which it was designed. Ketchum v. Stolp, 15 111. E., 342 

(1) Form of a Notice to person to make or repair fence injured by fire, 
flood, or other casualty. 

To A. B. : 

Sir : — I do hereby require you to repair that portion of the division 

fence on the line between our adjoining lands in the town of , 

and county of , which you are bound to repair [describe the 

fence in question']. Should you neglect to repair said fence for the 
period of ten days from this date, I shall proceed myself to repair 
the same at your expense. 

Dated this day of , A. D. 18—. N. T. 



DIV. IV.] REMOVAL OF FENCES. 185 

in writing, of his intention so to do, he may at any time there- 
after remove the same, unless sueh adjoining owner shall pre- 
viously cause the value of said fence to be ascertained by fence 
viewers, selected as hereinbefore provided, and pay or tender 
the same to such person. 

Sec. 15. If any such fence shall be removed without such Fence removed 
notice, the party removing the same shall pay to the party ^diJ£S«es. otIce 
injured all such damages as he may thereby sustain, to be 
recovered, with costs of suit.(l) 

Sec. 16. When a person has made a fence on an in closure Fence made on 
which afterwards, on making division lines, is found to be on ^tL^e may 
the laud of another, and the same has occurred through m is- beremoved -' 
take, such first person may enter on the land of the other and 
remove his fence and material within six months after such line 
has been run. (2) 

Sec. 17. But such fence shall not be removed if it w r as made when not 
of material taken from the land on which it is built, until the material is 
party pays or tenders to the owner of the land the value f paidfor * 
such material, to be ascertained by the fence viewers ; nor shall 
a fence be removed at a time when the removal will throw open 
or expose the crops of the other party, but it shall be removed 
within a reasonable time after the crops are secured, although 
the six months above specified have passed. 

Sec. 18. Fence viewers may examine witnesses on any and witnesses may 
all questions submitted to them, and either of such fence view- 
ers shall have power to issue subpoenas for and administer 
oaths to such witnesses. (3) 

(1) Where a party remove* a division fence without having previously given 
the required notice, the party injured thereby is not limited to a suit for the recov- 
ery of actual damages pn<=tained in consequence of such removal, but may make the 
fence anew and recover the expense thereof by action. 

If actual daman's are sustained, as the loss of a crop for instance, caused by 
the removal of the fence, an action for the recovery of such damages, as well as a 
sr.it to recover the expense of makiug the fence, may be sustained. Richardson v. 
McDougall, 11 Wend., 46. 

(2) The Trtjc giving the right to remove fences mad" by mistake, upon the 
lands of other persons, applies only to natural persons; it has no relation to a case 
where a fence is erected by mistake noon the lands of the United States or of this 
State. Blair v. Worky, 1 Scam. II., 179. 

(3) Form of Subpcena for Witness, by Fence Viewers. 

State of Illinois, 1 

County, / ss ' 

The People of the State of Illinois to {name of 'witness] : 

You are hereby commanded to appear before L. M. and R. S., 

fence viewers of the town of , in said county, at [slate the place], 

on the day of , 18 — , at — o'clock — . m., to testify and the 

truth to speak in a matter pending before said fence viewers, between 
A. B. and C. P., concerning [state briefly the matter in controvert;/]. 

In witness whereof the said fence viewers have hereunto set their 

hands this day of , 18 — . L. M. | Fence 

K. S. j Viewers. 



186 FENCES. [DIV. IV. 

compensation Sec. 19. Fence viewers shall be entitled to one dollar and 

viewers. fifty cents per day, each, for the time necessarily spent as above 

provided, to be paid in the first instance by the party requiring 

the services ; and all expenses of the view shall be borne equally 

Expenses of between the parties, except in case of view to appraise dam- 
view paid by ~ , r , r -. r , , . . . r . r , 
parties. ages for neglect or refusal to make or maintain a just propor- 
tion of a division fence, in which case the costs of view shall 
be paid by the party in default, and may be recovered as part 
of the damages assessed. 
Animals break- Sec. 20. If any horse, mule or ass, or any neat cattle, hogs 
sufe!mvner l0 " or sheep, or other domestic animals, shall break into any per- 
damagS son's inclosure, the fence being good and sufficient, the owner 
of such animal or animals shall be liable, in an action of tres- 
pass, to make good all damages to the owner or occupier of the 
inclosure. This section shall not be construed to require such 
fence in order to maintain an action for injuries done by ani- 
mals running at large contrary to law.(l) 
Animals _ Sec. 21. If any such animal or animals shall break into an 
incto^url^may inclosure surrounded by a fence of the height and sufficiency 
be distrained, prescribed by this act, or shall be wrongfully upon the prem- 
ises of another, the owner or occupier of such inclosure or 
premises may take into possession such animal or animals tres- 
passing, and keep the same until damages, with reasonable 
charges for keeping and feeding, and all costs of suit be paid, 
to be recovered in any court of competent jurisdiction ; and 
any person who shall take or rescue any such animal so taken 
up from the possession of the taker up without his consent, 
shall be liable to a fine of not less than three nor more than 
five dollars for each of such animals so rescued, to be recovered 
on complaint before any justice of the peace of the county 
where such offense shall be committed, for the use of the 
proviso. school fund of the proper county : Provided, that within twenty- 
four hours after taking such animal into his possession, he shall 
give notice to the owner thereof, if known, or if unknown, he 
shall post notices at some public place near the premises. (2) 

(1). In order to maintain an action for the trespass of stock upon one's 
inclosure, whereby damage is sustained, the owner of the inclosure must have 
maintained a good and sufficient fence about it. Eeaden x.Rust, 39 111., 186. This 
decision is understood to apply only in cases where animals are allowed to run at 
large. 

(2) The notice to the owner of animals trespassing on the land of another, where 
the owner is known, is not required to be in writing. It may be given verbally. 
The following may be the form of the notice for posting when the owner is un- 
known, and which may be used when the owner is known if desired to give written 
notice : 

Form of Notice to owner of animals found trespassing on the land of another, 

to be posted. 
To the owner of the animals herein described : 

You, said owner, are hereby notified that on the day of , 



DIV. IV.] FENCING RAILROADS. 187 

FENCING RAILROADS.(l) 

Section 1. Every railroad corporation sLall, within sixMakefcncuon 
months after any part of its line is open for use, erect and road."" 
thereafter maintain fences on both sides of its road, or so 
much thereof as is open for use, suitable and sufficient to pre- 
vent cattle, horses, sheep, hogs or other stock from getting on 
such railroad (except at the crossings of public roads and Except at 
highways, and within the limits of cities and incorporated in cities, 
towns and villages), with gates or bars at the farm-crossings Farm crossings, 
of such railroad ; which farm-crossings shall be constructed by 
such corporation when and where the same may become neces- 
sary, for the use of the proprietors of the lands adjoining such 
railroad; and shall also construct, where the same has not 
already been done, and thereafter maintain, at all road-cross- 
ings now existing, or hereafter established, cattle-guards, suit- Cattle gua: 



r«ls. 



able and sufficient to prevent cattle, horses, sheep, hogs and 
other stock from getting on such railroad ; and when such 
fences or cattle-guards are not made as aforesaid, or when 
such fences or cattle-guards are not kept in good repair, such 
railroad corporations shall be liable for double the amount of Liable for 
all damages which may . be done by the agents, engines or a ges. 
cars of such corporation to such cattle, horses, sheep, hogs or 
other stock ther-eon ; but when such fences and guards have 
been duly made and kept in good repair, such railroad corpo- when not 
ration shall not be liable for any such damages, unless negli- damages! 
gently or willfully done.(2) 

18 — , three certain cows entered wrongfully upon my premises lor as 

the case may be], in the town of , in the county of , State of 

Illinois, and that I then and + ,here took the same into my possession, 

at my residence at ■ [give place of residence with reasonable certainty], 

where they still remain, and are held by virtue of the statute in such 
cases made and provided. Said cows are described as follows : One 
a red cow [giving description], one a white cow [giving description], and 
the other a black cow [giving description]. 
Dated this day of , 18—. A. B. 

Where two persons own land adjoining each other, and join fences, each 
building the fence on his own land, and have no partition fence between them, and 
cattle break through the defective fence of one and enter the premises of the other, 
the latter would have no right to take them up or recover for injuries against the 
owner of the stock. Stoner et al. v. Shugart. Jr., 45 111. R., 77. See Buckmaster v. Cool, 
12 111. R., 76, and McCormick v. Tate, 20 111. R., 334. 

(1) The sections here inserted under the head of" Fencing Railroads" is that part 
of the general act in relation to fencing and operating railroads, etc., approved 
March 31, and in force July 1, 1874. 

(2) TJie obligation of a railroad company to fence its line of road does not 

attach until it has been in operation six months, and where the company lias not . • 

been in operation six months, but had constructed a fence, it is under no obligation 
to keep it in repair, the duty not having attached. Toledo, Peoria & Warsaw H. R. 
Co. v. Miller, 45 111. R., 42. 

Where a railroad company fails to fence its track as required by law, or has 
erected an insufficient fence, or failed to maintain a fence, it is liable for all dam- 



188 



FENCES. 



[div. IV. 



Whoever shall 
drive horses or 
animals on 
track, or tear 
down fence, 



Keep-clear of Sec. 1 J. It shall be the duty of all railroad corporations to 
keep their right of way clear from all dead grass, dry weeds 
or other dangerous or combustible material; and for neglect, 
shall be liable to the penalties named in section one. 

Sec. 2. If any person shall ride, lead or drive any horse 
or other animal upon the track or lands of such railroad cor- 
poration and within such fences or guards (except to cross at 

shall be liable. f arm or road-crossings), without the consent of the corpora- 
tion, or shall tear down or otherwise render insufficient to 
exclude stock, any part of such fence, guards, gates or bars, 
or shall leave the gates or bars at farm-crossings open or 
down, or shall leave horses or other animals standing upon 
farm or road-crossings, he shall be liable to a penalty of not 
less than ten dollars, nor more than one hundred dollars, to 
be recovered in an action of debt, before any court having 
competent jurisdiction thereof, in the name of such railroad 
corporation, and for the use of the school fund in the county, 
and shall pay all damages which shall be sustained thereby to 
the party aggrieved. 



Penalty. 



For use of 
school fund. 



ages resulting from such omissions of duty, and this without any reference to the 
manner in which its engines may have been controlled. St. Louis. Alton & Terre 
Haute R. R. Co. v. Under e< at., 49 IU. R., 433; Same v. Todd, 36 111. R , 409. 

The question of the obligation of a railroad company to fence their road at 
a particular place is one of law. not of fact, and should not be left to a jury to decide. 
Illinois Central R. R. Co. v. Whalen, 42 111. R., 396. 

In cases tcliere a railroad company are not bound to fence their road, or 
where others are equally bound to fence, they are nevertheless bound to use ordi- 
nary care in running their trains to prevent the injuring of stock. They would be 
liable for injuries in case of gross negligence in this regard. Headen v. Rust, 3'J ILL 
R., 186; St. Louis, Alton & Terre Haute R. R. Co. v. Linder el al., 39 111. R., 433. 

Where an accident is attributable to a defective fence, which it was the duty 
of the company to provide, if the company has failed to erect a suitable fence, negli- 
gence is inferred ; but where they have performed this duty, then negligence must 
be proved as in ordinary cases. Illinois Central R. R. Co. \. Whalen, 4 111. R.. 396. 

The necessity of fencing a railroad at a given point is not obviated by there 
being an embankment at that place from twelve to twenty feet in height, it not 
appearing that the embankmeut was sufficient to prevent stock from getting upon 
the track. Toledo. Peoria & Warsaw R. R. Co. v. Sweeney, 41 111. R., 226. 

A. railroad company are not required to fence their track upon their depot 
grounds in a town. G. & C. U. R. R. Co. v. Griffin, 31 111. R., 303. 

Railroad companies are not required by the statute to fence their line of road 
within the corporate limits of a town and in actions against them to recover for 
injuries to stock, occurring within such limits, it is error to refuse so to instruct the . 
Jjury. Chicago & Alton R. R. Co. v. Engle, 58 111. R., 381. But if railroad companies 
construct cattle guards within the limits of towns, they should keep them in repair. 
C & R. I R- R. Co. v. Reid, 24 111. R., 144. 

The necessity for a fence where the contrary is alleged, in case of injury, is shown 
by proof that the cattle were upon the track. Toledo, Peoria & Warsaw R. R. Co, v. 
Sweeney, 41 111. R., 226. 

The fence must be suitable and sufficient, so as to turn stock, even though to 
some extent unruly. C. & A. R. R. Co. v. Uley, 38 111. R., 410. 

If a railway company neglects to comjjly with the statute, and an injury to 
an animal occurs, which is fairly attributable to such neglect, the mere fact that the 
animal is at large, if so at large in violation of no general or local law, will not 
relieve the company of its liability, even though the animal may go upon the track 
from uninclosed lots adjacent to the crossing, and is not standing, when injured, on 
the actual intersection of the railway and the highway. Toledo, Wabash & Western 
R. R. Co. v. Furgusson, 42 HI. R., 449. See, also, C. B. & Q. R. R Co. v. Kaufman, 38 
111. R., 425. 

A verbal agreement between a property owner through whose field a railroad 
passed and the railroad company, that if the company would erect certain cattle 
guards they need not fence the sides of their road, and he would not claim damage 



DIV. IV.] FENCING RAILROADS. 180 

« 

Sec. 3. Whenever a railroad corporation shall neglect or "When railroad 
refuse to build or repair such fence, gates, bars or farm-cross- SfSe or repair 
ings, as provided in this act, the owner or occupant of theJSJ|i^. glve 
lands adjoining such railroad, or over or through which the 
railroad track is or may be laid, may give notice, in writing, 
to such corporation, or the lessees thereof, or the persons 
operating such railroad, to build such fence, gate, bars or 
farm-crossings within thirty days (or repair said fence, gate, 
bars or farm-crossings, as the case may be, within ten days) 
after the service of said notice. Such notice shall describe 
the lands on which said fence, gate, bars or farm-crossings 
are required to be built or repaired. Service of such notice |o™£ e of 
may be made by delivering the same to any station agent of 
such railroad corporation, or the persons operating such rail- 
road. (1) 

for injury done by the road to his stock getting thereon from the field, does not pass 
to or bind his grantee of the premises. St. L., A. & T. H. R. R. Co. v. Todd, 36 111. 
R.. 409. 

Where cattle are injured upon a railroad at a place where the company are 
required by law to fence the road, and it has been in operation several years without 
that having been done, the company are liable for the damages resulting from such 
neglect of duty. Toledo, Peoria & Warsaw Railway Co. v. M'ickery, 4 111. R., 76. 

Where two railroad companies are using the same li ne of road, one com- 
pany being the owner, and the other using the road by its permission, the company 
owning the track is liable for damages done, by reason of an unfenced track, by the 
trains of the other company, the same as if done by its own trains, and the company 
committing the injury will also be liable. Toledo, Peoria & Wanaw Railway Co. v. 
Rvmbold, 40 111. R, 143; Illinois Central R. R. Co. v. Kanouse, 39 111. R., 272. 

In the absence of proof of negligence, a railroad company is not liable for the 
killing of cattle which had strayed on to its track at a common or public road cross- 
ing. Logansport, Peoria 6c Burlington R. R. Co. v Caldivell. 38 111. R.. 280. 

Where stock yet upon a- railroad track without the fault of the company, the 
law requires evidence beyond the mere proof that they were injured by the engine 
and carriages of the company on the road, to establish a liability for such injuries; 
there must, in such case, be proof of negligence on the part of the agents and ser- 
vants of the company in charge of the train at the time the injury occurred. Chi- 
cago d- Norlhmeslern Railivay Co. v Bnrrie, 55 111. R., 226. 

Railroad companies are liable for killing mules and asses, these animals 
being included in the term ''cattle and horses." Ohio & Mississippi R. R. Co.v, 
Brvbaker, 47 111. R., 462. 

When a fence along a railroad has been sufficient, and from accident or 
wrong, over which the company had no control, it becomes insufficient to turn stock, 
they have a reasonable time within which to repair it It is not required that the 
company should have a patrol at all times, night and day. passing along their road 
to Bee the condition of the fence. If this is done daily, and they shall at once, when 
informed of its insufficiency, make the necessary repairs, they should not be held 
liable for injuries resulting from its temporary insufficient condition. The company 
must be held to a high degree of diligence, but not to an impossible or unreasonable 
extent. Illinois Central R. R. Co. v. Sxcearingtn, 47 111. K. f 206. 

(1) Form of Notice to Railroad Company to build or repair Fence, etc. 
To the Railroad Co. : 

You are hereby notified that I require you to build [or repair] the 
fence along the line of your road on the following described land 
adjoining your said roan, of which I am the owner [or occupant], to 
wit: [describe tlie premises with reasonable certainty'], Miiich fence I 
require you to build within thirty days [or repair within ten days] 
after the service of this notice. 

Dated and served this dav of , 18 — . 

A.B. 

A copy of this notice should be retained by the person serving it. 



190 FENCES. [MY. IV. 

: . 

sof Sec. 4. If the party so notified shall refuse to build or 

refusal to build • \ r u c • i 

or repair, repair such ience, gates, bars or farm-crossings, in accordance 
pTiftmay doso. Vlt ^ 1 tne provisions of this act. the owner or occupant of the 
land required to be fenced shall have the right to enter upon 
the land and track of said railroad company, and may build 
or repair such fence, gates, bars or farm-crossings, as the case 
may be ; and the person so building or repairing such fence, 
dSibiethe gates, bars or farm-crossings shall be entitled to double the 
»a lue of same. va i ue thereof from such corporation of party actually occupy- 
ing or using such railroad, to be recovered with interest atone 
per cent, per month, as damages, from the time such fence, 
es, bars or farm-crossings were built cr repaired, in any 
court of competent jurisdiction, together with costs, to be 
taxed by the court. 



DIV. V.] PAUPERS. 191 



DIVISION V. 

PAUPERS. APPROVED 

March 23. 
In Force 

Section 1. Every poor person -who shall be unable to earn July1 > 1874 - 
a livelihood in consequence of any bodily infirmity, idiocy, v v 
lunacy, or other unavoidable cause, shall be supported by the Pergons to 
father, grandfather, mother, grandmother, children, grand- ^ppo^^ 001 " 
children, brothers or sisters of such poor person, if they, or 
either of them, be of sufficient ability : Provided, that when proviso, 
any persons become paupers from intemperance, or other bad 
conduct, they shall not be entitled to support from any relation, 
except parent or child. (1) 

Sec. 2. The children shall first be called on to support their order in which 
parents, if there be children of sufficient ability, and if there {Jouncfto 16 
be none of sufficient ability, the parents of such poor person ^gg?!^ 00 * 
shall be next called on, if they be of sufficient ability ; and if 
there be no parents or children of sufficient ability, the brothers 
and sisters of such poor person shall be next called on if they 
be of sufficient ability : and if there be no brothers or sisters 
of sufficient ability, the grandchildren of such poor person 
shall next be called on, if they be of sufficient ability; and 
next, the grandparents, if they be of sufficient ability : Pro- Proviso. 
vided, married females, while their husbands live, shall not be Married 
liable to contribute for the support of their poor relatives, females - 
except when they have separate property, or property in their 
own right, out of which such contributions can be made. 

Sec. 3. Upon any failure of any such relative or relatives Prosecution for 
to support such poor person as provided by this act, it shall support! 
be the duty of the State's Attorney to make complaint thereof 
to the county court of his county, against all the relatives of 
such pauper in this State, liable to his support, and prosecute 
the same. 

Sec 4. The complaint provided for in the preceding section complaint, to 
may also be made by the overseer of the poor of the town or whom made - 
precinct where the poor person may reside, and it shall be the 
duty of such overseer to make such complaint in all cases 
where there may not be a county agent, or State's Attorney, 
or when the county agent or State's Attorney shall refuse or 
neglect to make the same. 



fl) A pavper, under our statute, is a person destitute of pecuniary means, 
and nuable to earn a livelihood in consequence of any bodily in firmitj, idiocy, 
lunacy or other unavoidable cause. Williams v. Franklin, o9 111. R., 22. 

Where a man has been supplied at his own request, as a pauper, for many months, 
it is good evidence, so far as he is concerned, that he is a pauper. Hunnewell v. 
Uobwl, -10 Maine li.. 28. 



192 



PAUPERS. [DIV. V. 



Notice of Sec. 5. At least ten days' notice of such application shall 

application. , ., , „ , f . L K , . 

be given to the deiendant. by summons, requiring him to 
appear and answer the complaint, 
proceedings in Sec. 6. The defendants, being duly notified, the court shall 
Eupport. compe proceed in a summary way to hear the proofs and allegations 
of the parties, without further written pleadings, and if satis- 
fied by the allegations and proofs that the defendants, or any 
of them, are not supporting such poor person, or contributing 
their proper share for such support, in a manner suitable to 
the situation of such poor person, taking into account the 
ability of such defendants, then the court may at the time of 
giving judgment in the case, and from time to time thereafter, 
make any and all necessary orders m regard to the custody of 
such poor person, and for the payment weekly to the overseer 
of the poor of the town or precinct, or to such other person as 
the court shall direct, of such sum, to be applied in the sup- 
port of such poor person, as in the opinion of the court is 
necessary to so properly support such poor person, taking into 
view the ability of the defendant to furnish such support. 
The court may discharge any defendant that may appear not 
to be liable for such support, or who is contributing his fair 
share therefor, 
when relatives Sec. 7. If it shall appear that the relatives of a certain 
suppon. olt degree are unable wholly to maintain such poor person, but are 
able to contribute towards his support, the court may, in its 
discretion, direct two or more relatives of different degrees to 
maintain such poor person, and shall prescribe the proportion 
which each shall contribute for that purpose, 
fn case of Sec. 8. If it shall appear that the relatives liable, as afore- 

Kupport? 117 said, are not of sufficient ability wholly to maintain such poor 
person, but are able to contribute something, the court shall 
direct the sum, in proportion to their ability, which such rela- 
tives shall pay weekly for that purpose. 
Nature of Sec. 9. The order may specify the time during which the 

relatives aforesaid shall maintain such poor person, or during 
which any of the sums so directed shall be paid, or it may be 
indefinite, and until the further order of the court, 
court may vary Sec. JO. The court may, from time to time, vary such order 
whenever circumstances shall require it, on the application 
either of any relative affected thereby, or of the county agent 
or overseers of the poor, upon ten day's notice being given to 
the opposite party. 
Payment Sec. 11. Payment of the several sums under such order as 

St?c P hment by tne 7 ^ a ^ due ma y De compelled by attachment as for contempt 
against the persons of the defendants, or by execution against 



DIV. V.] PAUPERS. 193 

their lands and tenements, goods and chattels, or both, in like 
manner as other judgments at law or decrees in chancery. 

Sec. 12. In every such application, if the judgment shall D e s ^ ndant pay 
be against the defendant, he shall also be adjudged to pay the 
costs of the proceeding, or the costs may be apportioned 
according to the rights of the case, but if the application is 
dismissed, it shall be at the costs of the county or town on 
whose behalf the application is made. 

Sec. 13. If any person shall bring and leave any pauper in any Person 

" « Hvin oiiicr in 

county in this State, wherein such pauper is not lawfully set- pauper. 
tied, knowing him to be a pauper, he shall ferfeit and pay the 
sum of one hundred dollars for every such offense, to be sued Penalty. 
for and recovered by and to the use of such county by action 
of debt, before any justice of the peace in the proper county. 

Sec. 14. Every county (except those in which the poor are county 
supported by the towns) shall relieve and support all poor and support - ^ 
indigent persons lawfully resident therein, except as herein 
otherwise provided. (1) 

Sec. 15. Every town in counties in which the poor are sup- Town support. * 
ported by the towns (as provided by law) shall relieve and 
support all poor and indigent persons lawfully resident therein, 
except as herein otherwise provided. 

Sec. 16. If any person shall become chargeable as a pauper Non-resident 
in any county or- town, who did not reside therein at the com- pI U per. ng 
mencement of six months immediately preceding his becoming 1875 - 
so chargeable, but did, at that time, reside in some other county 
or town in this State, it shall be the duty of the county or town clerk to give 
clerk, as the case may be, to send written notice by mail or notlce ' 
otherwise to the county clerk of the county in which the 
pauper so resided, or if he then resided in a town supporting 

(1) The duty of supporting the paupers resident in the various counties of 

this State, is imposed upon such counties , and they are bound by all contracts for the 
support of such persons, when legally entered into by the proper officer. Supervisors 
of Clay County v. Plant, 42 111. R., 324. 

If the proper public authorities fail to provide a comfortable support of paupers, 
after notice of their condition, individuals may do so, and recover of the public 
therefor. Seagreaves v. City of Alton, 13 111. R., 372. 

Where a city voluntarily supports an insane person, having means of support, 
recovery cannot be had of the county therefor. City of Alton v. Madison County, 21 
111. R., 115. 

It has been held to be the duty of overseers of the poor to relieve a person 
found in their town in distress, although he may have property of his own, not avail- 
able for his immediate relief. Norriclgewock v. Solon, 49 Maine R., 385. 

It has. in practice, always been supposed that when an overseer of the poor is 
unable to procure any contract for the support of a pauper, and no poor-house has 
been provided, or in case of urgency, he may purchase necessary articles for the 
relief of the pauper on credit of the county, and thus render it liable for payment. 
Supervisors of Clay County v. Plant, 42 111. R., 325. See Clinton v. Benton, 49 Maine R., 550. 

But where contracts for the support of paupers, or for articles furnished, are 
extravagant or improvident, the hoard of supervisors may no doubt reduce the 
amount to be paid. Supervisors of Clay County v. Plant, 42 111. R., 324. 

A county would probably not be liable for medical services rendered a pauper, 
unless ordered by the overseer of the poor, even Avhere it was needed before buch 
order could be obtained. French v. Benton, 44 New Hampshire R., 28. 

13 



104 PAUPERS. [DIV. V. 

its own poor, to the town clerk of such town, requesting the 
proper authorities of such county or town to remove said 
pauper forthwith, and to pay the expenses accrued and to 
accrue, in taking care of the same ; and such county or town, 
as the case may be, where such pauper resided at the com- 
187d. mencement of the six months immediately preceding such 
person becoming chargeable as a pauper shall pay to the 
county or town so taking care of such pauper, all reasonable 
charges for the same, and such amount may be recovered by 
suit in any court of competent jurisdiction. (1) 
"r r Sden " ^ EC * ^ ie ^ erm " residence," mentioned in this act, shall 

be taken and considered to mean the actual residence of the 
party, or the place where he was employed, or in case he was 
in no employment, then it shall be considered and held to be 
the place where he made it his home. (2) 

(1) Form of Notice to remove Non-resident Pauper. 

To the county clerk of county, State of Illinois [or as the case 

may be~] : 
You are hereby notified that one A. B. has become chargeable as 
a pauper in the town of , county of , and State of Illi- 
nois, he not residing therein at the commencement of thirty days 
immediately preceding his becoming so chargeable, but did at that 
time reside in [state residence of the pauper], the proper authorities of 
said county [or town] are therefore' requested to remove said pauper 
forthwith, and pay the expenses accrued and to accrue in taking care 
of the same. 

Dated at , this day of , 18 — . 

C. D., 
Town Clerk of the town of . 

(2) Tlie settlement or residence of a pauper is the place of his birth until he 
acquires another derivatively from his pareuts or by acts of his own. Toby v. Madi- 
son, 44 Penn. St. R„ (8 Wright) 60. 

After coming of age, a minor's removal elsewhere to reside, with no determinate 
intention of departure, will fix his domicile there; and it will not be altered by his 
afterwards going away temporarily with the intent to return. Hart v. Lindsey, 17 
N. H. R, 235. 

A person having a legal settlement in one place, that settlement continues until 
another is acquired in the State. A settlement in another State or county will not 
change that acquired in this State, if the pauper returns to it. Where a person 
moved into a town, purchased property, resided two years, and then left the State, 
leaving his family behind him, the settlement and residence of the family is there 
fixed; and, if they become paupers, they are a charge upon such town or county. 
Payne v. Town of Dunham. 29 111. R., 129. See Townsend v. Billerica, 10 Mass R., 411. 

An illegitimate child retains the settlement which his mother had at his birth 
until he gains one in his own right, notwithstanding that she subsequently acquires 
another. Hallowell v. Augusta, 52 Maine R., 216. 

Persons acting under the legal authority of others, or not capable of acting for 
themselves for the want of mind, do not lose or acquire a residence thereby. Payne 
v. Town oj Dunham, 29 111. R., 125; Town of Freeport v. Stephenson County, 41 III. R., 
501. The residence or settlement of such a person is derived from his father or those 
having paramount control over him. Payne v. Town of Dunham, 29 111. R, 128. 

A residence is not changed by absence for a temporary purpose, only, if the 
person has sufficient intelligence to form and retain the intention of leaving for a 
temporary purpose and of returning; and he does return, in accordance with such 
intention. Corinth v. Bradford. 15 Maine R.. 510. The rule that a domicile once 
acquired is presumed to continue uutil a subsequent change is shown, applies to 
cases of settlement of paupers. Chicope.e v. Whately. 6 Allen K., (Mass.) SOS. 

The. admissions of overseers of the ]>oor in binding out, or their acts in pro- 
viding support for a pauper, are not admissible in evidence against the town to 



DIV. V.] PAUPERS. 



Sec. 18 In counties under township organization, the super- Oremets of 
visors of the respective towns therein shall be ex officio over- 
seers of the poor of their towns.(l)* 

Sec. 19. In counties not under township organization, the JJJJJJJ™** 
county board shall designate some justice of the peace, or some under 
other suitable person, in each precinct therein, who shall be organization, 
overseer of the poor in such precinct. 

Sec. 20. The overseers of the poor shall have the care and Overseers have 
oversight of all such persons in their town or precinct as are c arge ° poor " 
unable to earn a livelihood in consequence of any bodily 
infirmity, idiocy, lunacy or other unavoidable cause, and as 
are not supported by their relatives or at the county poor- 
house, and shall see that they are suitably relieved, supported 
and employed, subject to such restrictions and regulations as 
may be prescribed by the coanty board, or in case the poor are 
supported by the town, subject to such restrictions and regula- 
tions as may be prescribed by such town. 

Sec. 21. Where the county has not a poor-house at which When poor 
its poor are supported the overseers of the poor of the respec- coESact d by 
tive towns or precincts shall commit the care of such poor per- 
sons as shall require to be supported by the county or by the 
town to some moral and discreet householder in the town or 
precinct of sufficient ability to provide for them, and who will 
enter into a written contract with the county (or, if the poor 
are supported by the town, with the town,) therefor upon such 
terms and conditions as may be approved by the county board 
or board of town auditors, as the case may be. (2) 



prove the settlement of a person therein. New Bedford v. Taunton, 9 Allen, (Mass.) 
207: Dartmouth v. Lafceville, id., 211. 

JB// the division of a toivn, or tJie annexation of a portion of one to another, 
the pauper of the portion annexed does not lose his previous settlement or residence 
at the place where" he had it when he became a public charge. Town of Freeport v. 
Steptienson Co., 41 111. R., 495. See cases cited, Oxford v. Bethany, 15 Conn. R., 252; 
■sa. 550; Brexcer v. Epdington. 42 Me. R., 541 ; Yarmouth v. North Yarmouth, 44 
Me. R., 353; Southridge v. Sltarlton, 15 Mass. R„ 248. 

<T» Under tlie township organization lata, it is not necessary that the justices 
of the peace of the town shall join with' the overseer of the poor in ordering goods 
for the support of a pauper; he may act alone. The overseer of the poor alone u 
authorized to perform the duties of the office. Where he has entered into a contract 
for the supr>ort of a pauper, the liability of the county is thereby fixed, and its 
agents have no discretion, but must discharge the obligation. Nor can the chairman 
of the board of supervisors, in such a case, by notice or otherwise, abridge the 
powers of the overseer of the poor. He derives his powers from the law, and not 
from the supervisors. Supervisors of Clay County v. Plant, 42 111. R., 324. 

(2) Form of Contract for support of Poor Person. 

This contract, made and entered into this day of , 18 — , 

between A. B., of , and the town of , in the county of 

, and State of Illinois, witnesseth: That the said A. B., in 

consideration of the agreements herein, on the part of said town of. 

, does hereby contract and agree to take care of one O. P., a 

poor person of said town, for and during the period of [slate the time'] 
from the date hereof, and during said time to support and provide 

*Amended, bee post p. 200 



196 



PAUPERS. [DIV. V 



Bond for Sec. 22. Everv person to whom the care of the poor of any 

support of poor. , • , i ni ■ " "i i ii i J 

by contract, town or precinct shall be committed shall execute to the county 
(or town, as the case may be,) a bond with such security as the 
county board (or board of town auditors, as the case may be), 
shall require, conditioned that he will treat every poor person 
( committed to his care with humanity, and afford him the neces- 
sary attention and comforts of life suitable to his condition, 
* and that he will fulfill his said agreement for the keeping of 
such poor according to the true intent and meaning thereof. (1) 
Partial support Sec. 23. "When any poor or indigent person does not require 
persons. to be supported wholly by the county, the overseer of the 

poor may, subject to such limitations as may be prescribed by 
the county board, render him temporary relief without his 
being committed to the care of any such person, or being sent 
to the county poor-house. 

for said 0. P. in a good and comfortable manner, and to supply him 
with [state the particulars of the contract as agreed upon]. 

And the said town of agrees, on condition of faithful per- 
formance of this contract by said A. B. on his Dart, as herein set 
forth, to pay to him [stale agreement on the part of the foicn]. 

In witness whereof said A. B. has hereunto set his hand and seal, 
and C. D., supervisor of said town, doth the like, on the part of said 
town, the day and year first above written. 

A. B. [seal.] 
C. D. [seal.] 
Supervisor. 
Form of Approval of Contract by Town Auditors. 

"We, the town auditors of the town of — , do hereby approve 

the above [or within] contract by A. B. with said town of . 

Dated, this day of ,18—. 

[ To be signed by the town auditors.'] 

(1) Form of Bond by Person contracting to take care of Poor Person. 

Know all men by these presents, that we, A. B. and C. D., of — , 

* are held and firmly bound unto the town of , in the county of 

, and State of Illinois, in the penal sum of dollars, which 

sum well and truly to be paid, we bind ourselves, our heirs, execu- 
tors and administrators, jointly, severally and firmly by these 
presents. Sealed with our seals, this day of , IS — . 

The condition of the above obligation is such that, whereas, the 
above bounden A. B. has this day entered into written contract with 
the said town of for the care and support of O. P., a poor per- 
son of said town, for and during the period of [state the time]. Kow, 
if the said A. B. shall treat said poor person so committed to his 
care with humanity, and afford him the necessary attention and 
comforts of life suitable to his condition, and shall fulfill his said 
agreement for the keeping of such poor person, according to the true 
intent and meaning thereof, then this obligation to be void, other- 
wise to remain in full force and effect. 

A. B. [seal.] 

C. D. [SEAL.] 
The bond required to be given bu\the person contracting to support a pauper, 
is designed to indemnify the county or town against further expense in supporting 



DIV. V.] PAUPERS. 107 

. 24. "When any non-resident, or any person not coming Non-resident 
■within the definition of a pauper, of any county or town shall becoming sick, 
fall sick, not having money or property to pay his board, nurs- 
ing and medical aid, the overseers of the poor of the town or 
precinct in which he may be shall give, or cause to be given 
to him, such assistance as they may deem necessary and proper, 
or cause him to be conveyed to his home, subject to such rules 
and regulations as the county board may prescribe ; and if he 
shall die, cause him to be decently buried.(l) 

Sec. 25. In all counties in which the poor are not supported Overseers 
by the towns, the overseers of poor of each town, or precinct county board, 
shall, at each regular session of the county board, and at such 
other times as the county board may require, make a full report 
of all their actings and doings, and return a list of all the poor 
in their respective towns or precincts, specifying the age, sex, 
condition and infirmities of each. 

Sec. 26. Upon such report being made it shall be the duty Appropriation. 
of the county board to make the proper appropriations from 
the county treasury for the payment of the necessary expen- 
ses of such relief and support of the poor. 

Sec. 27. When the poor are supported by towns, the over- Report to town 
seers of the poor shall make such report to the board of town 
auditors at their regular meeting, who shall audit all accounts 

the pauper, but not to absolve it from the duty. If the person agreeing to support 
the pauper fails through inability, or otherwise, to do so. the county or town must 
still afford the relief, and must look to the person with whom they contracted, and 
his securities, for indemnify for the loss. If the overseer fails to take a bond, and 
the person with whom he has contracted fails to support the pauper, he should 
then, if within his power, contract with some other person ; or, failing in that, he 
should furnish such articles as are adapted to the necessities of the pauper, and hire 
a suitable person, on the best terms he can, to help him. If the overseer should act 
in bad faith, or is guilty of fraud, and the county thereby becomes the loser, he 
would, it seems, be liable for the loss. Supervisors of Clay County v. Plant, 42 111. R.,32o. 

A. contract with a county or town to properly feed and clothe every pauper 
sent to the contractor upon the order of the proper authorities, for a specified sum, 
the contractor can recover no more than that sum from the county or town for taking 
care of a lunatic pauper, although the trouble and expense was increased by reason 
of the insanity. The term pauper, under the statute, includes lunatic paupers. 
County of Macoicpinv. Edwards, 15 111. R.. 198. 

A person not authorized by law for that purpose, cannot furnish board.to one 
who is on the list of paupers, and an inmate of the poor-house, and have a claim 
therefor upon the county, whether he knew the party to be a pauper or not; and 
the overseers of the poor have no power to bind the county to the payment of such 
claim. Board of Commissioners of Knox County v. Jone*. 7 Ind. R., 3. 

Insane persons are not intended to be included in the pauper act. An insane 
person having property adequate to his support, is not a pauper, and the county is 
not liable for the support of such person, nor is the city in which he resides liable 
for his support. City of Alton v. County of Madison, 21 111. R., 115. 

(11 CounHe* are liable for a reasonable compensation, under the pauper act, 
to one who renders medical aid to persons falling sick within the county, and having 
no means to pay for the same. The decision cf the board of supervisors as to what 
is a proper allowance, is not conclusive; and if a proper amount is not allowed, an 
action may be maintained therefor. In such cases, persons falling sick with a con- 
tagions disease are not paupers within the meaning of the statute, and in an action 
to recover for medical aid so furnished to them, the liability of the county is not 
affected by the fact that a "poor-house" had been provided in the county for the 
reception of paupers. Suoh an establishment is not designed to receive persons 
affected with contagious disease, but only those who are technically paupers. Super- 
visors of LaSalle v. Reynolds, 49 I1L R., 186. 



198 PAUPERS. [div. V. 

and order the payment of such expenses from the town 
treasury. 
Power of Sec. 28. The county board of any county in this State in 

coun > oar . w kich ^g p 0or are no £ SU pp 0r ted by the towns thereof, as pro- 
vided by law, shall have power — 
Acquire land 1. To acquire, in the name of the county, by purchase, 
nouse. rect p0 ° r " grant, gift or devise, a suitable tract or tracts of land upon 
which to erect and maintain a county poor-house, and other 
necessary buildings in connection therewith, and for the estab- 
lishment and maintenance of a farm for the employment of 
the poor, and to erect and maintain such buildings and estab- 
lish and maintain such farm ; but they shall not expend for 
the purchase of any such land or the erection of any such 
buildings a sum exceeding three thousand dollars, without a 
two-thirds majority vote of the members of all the county 
board. 
Receive 2. To receive, in the name of the county, gifts, devises and 

bequests. bequests to aid in the erection or maintenance of a poor-house, 

or in the care and support of poor and indigent persons. 

3. To make all proper rules and regulations for the manage- 
ment of the county poor-house and poor-farm, and of the 
inmates of the poor-house. 
Appoint 4. To appoint a keeper of the poor-house and all necessary 

kteper. agents and servants for the management and control of the 

poor house and farm, and prescribe their compensation and 
duties. * 

Physician. 5. To appoint a county physician, and prescribe his com- 

pensation and duties. 
Appoint agent. 6. To appoint an agent to have the general supervision and 
charge of all matters in relation to the care and support of 
the poor, and prescribe his compensation and duties. 
Make 7. To make all proper and necessary appropriations out of 

appropriations. ^ count y treasury for the purchase of land and the erection 
of buildings as authorized by this act, and to defray the 
expenses necessary in the care and maintenance of the same 
and for the support of the poor, and to cause an amount suffi- 
cient for said purposes to be levied upon the taxable property 
of the county, and collected as other taxes. 
May sen poor- 8. Upon a two-thirds majority of all the members of tne 
farm ' board to sell or dispose of the whole or any part of the poor- 

farm of the county, in such manner and upon such terms as 
they may deem most for the interests of the county, and to 
make and execute all necessary conveyances thereof, in the 
same manner as other conveyances of real estate may be made 
by a county. 



DIV. V.] PAUPERS. 199 

. 29. The overseers of the poor in each town in coun- Overseers keep 
ties under township organization (whether the poor are sup- aecoun 
ported by townships or otherwise), and of each precinct in 
counties not under township organization, shall keep an accu- 
rate account, showing the name of every person relieved or 
supported in their town or precinct ; the place of his birth ; 
the manner in which he is relieved or supported, whether in 
whole or in part at the expense of the county or town ; the 
amount of the aid furnished ; whether the dependency was on 
account of idioc} 7 , lunacy, intemperance or other cause, stating 
the cause. And on or before the first meeting of the county File copy, 
board in September of each, year, file a copy of such account 
with the county clerk of their county. 

Sec. 30. When the county agent shall furnish relief to any Relief by 
of the poor of the county, he shall keep a like account, and at count y a s ent 
the same time in each year file a copy of the same with the 
county clerk of his county. 

Sec. 31. The keeper of the poor-house shall also keep an Keeper of poor 
account, showing the name of each person admitted to the account eep 
county poor-house ; the time of his admission and discharge ; 
the place of his birth ; whether his dependence resulted from 
idiocy, lunacy, intemperance or other cause, stating the cause ; 
and shall, at the same time in each year, file with the county 
clerk of his county a copy of the same, together with a state- 
ment showing the average number of persons kept in the poor 
house each month during the year. 

Sec. 32. If any overseer of the poor, county agent, or Neglectto 
keeper of the poor-house, shall fail or neglect to make such a make report. 

i ■ • i i i • i l -n f l Penalty. 

report at the time required by this act, he shall, ior each 
offense, forfeit the sum of twenty-five dollars, to be recovered 
in the name of the county, in any court of competent jurisdic- 
tion. 

Sec. 33. When any county shall have provided a suitable when poor 
poor-house for the accommodation of the poor of the county, v?aed, P poor to 
and the same is ready for the reception and care of the poor, be taken there - 
all poor persons requiring the care and support of the county 
shall be cared for and supported at such poor-house, and not in 
the several towns and precincts in the county, except when they 
cannot be received in the poor-house, and except as herein 
otherwise provided. 

Sec. 34. In all cases where counties have voted for the Former acts of 
support of the paupers of such counties by townships, and the f^Jiied. 
said counties have acted in good faith for the term of five 
years under the authority of said vote, in the support of pau- 
pers by townships, the acts of said counties and the townships 



200 



PAUPERS. 



[DIV. V. 



Manner of 
support of 
paupers 
submitted to 
vote by ballot. 



thereof shall be deemed legal and binding, notwithstanding 
any informality in the time or manner of holding the said 
elections, or in recording or preserving the records of the 
same. 

Sec. 35. Upon the petition of not less than twenty legal 
voters residing in each one of a majority of the towns in any 
county which shall have adopted the mode of supporting pau- 
pers by townships, the county board shall cause to be submit- 
ted to the voters of the county, at the next general election 
for town officers, the question of the continuance of that mode 
Form of ballot, of supporting the poor. The ballots shall be, " For township 
support of paupers," or "Against township support of pau- 
pers ; " and notices of the election shall be given, and the 
votes canvassed and returns made the same as for county offi- 
cers. If it shall appear by the returns of said election that a 
majority of the votes cast on that question at said election are 
against township support of paupers, then that mode of sup- 
porting the poor shall cease, and thereafter the poor shall be 
supported in the same manner as provided by law in counties 
not having adopted the support of the poor by townships ; 
otherwise the poor of such counties shall be supported by 
townships, as heretofore provided. Said question shall not be 
submitted oftener than once in five years. 



Notice of 
election. 



AMENDATORY ACTS. 



OVERSEERS OF THE POOR. 



AN ACT to amend section eighteen (18), of an act entitled " An act to revise the 
law in relation to paupers." Approved May S4, 1877. In force July 1, 1877. 



Supervisor 

ex-officio 

overseer. 



Sec. 1. Section eighteen (18), of an act entitled "An 
act to revise the law in relation to paupers," be amended to 
read as follows : 

Sec. 18. In counties under township organization the 
supervisors of the respective towns therein shall be ex-officio 
overseers of the poor of their towns : .Provided, That for 
Proviso— when towns containing four thousand (4000) inhabitants or over, 
towns may ap- U pon written request of said supervisors, the county board 

point overseer. ^ . ^ . . r m \ J 

may appoint an overseer who is a resident ot such town, nx 
his compensation and term of office, which shall not exceed 
the term of said board. The overseer so appointed shall exe- 



MY. V.] AMENDATORY ACTS. 200a 

cute to the county an official bond in a penal sum with sureties Bond. 

to be fixed and approved by the county board, conditioned for 

the faithful discharge of his duties and the due application of 

all funds or property which shall come to his hands as such 

overseer: Provided, further, That this section shall not when does not 

apply to counties containing over two hundred thousand (200,- apply - 

000) inhabitants. 

RESIDENCE FOR PURPOSE OF VOTING. 

AN ACT to prevent illegal voting by paupers and others in this State. Approved 
May 25, 1877. In force July 1, 1877. 

Sec. 1. No pauper or inmate of any county poor-house, Pauper, 
insane asylum or hospital in this State, shall by virtue of his 
abode at such county poor-house, insane asylum or hospital be 
deemed a resident or legal voter in the town, city, village or Not resident 
election district or precinct in which such poor-house, insane voters— when, 
asylum or hospital may be situated ; but every such person 
shall be deemed a resident of the town, city, village or election Residence- 
district or precinct in which he resided next prior to becom- w ere ' 
ing an inmate of such county poor-house, insane asylum or 
hospital. 

SEPARATE SUPPORT POOR HOUSE. 

AN ACT to provide for the establishment and maintenance of County Poor Houses 
in Counties where the separate support of Paupers has been adopted. Approved 
May 23, 1877. In force July 1, 1877. 

Sec. 1. The county board of any county that has heretofore county poor 
adopted, or may hereafter adopt the separate support of pau- 
pers may, whenever it shall see fit so to do, establish and 
maintain a county poor house, and for this purpose shall have 
all the power given to county boards by section twenty-eight ^^y^ard. 
(28) of an act entitled "An Act to revise the Law in relation 
to Paupers," of the Revised Statutes of 1874. 

Sec. 2. The county board of any such county, whenever Rate per day 
any such poor house is established, may fix the rate per day for SUD P° rt - 
or per week, that each town shall pay for the support and 
maintenance in such poor house for each of their respective 
paupers, which shall be paid to the county agent in charge of To whom paid, 
the poor house, or otherwise, as provided by the county board. 

Sec. 3. Each town of such counties may then have its ^J 01 ^/ 
paupers supported in such poor house, by paying said rate, or 
may provide for them otherwise, as it shall deem best. 



2005 



PAUPERS. 



[DIV. V. 



Received on 
order of 
overseer. 



When town 
fails to support 



County agent 
report." 



Sec. 4. The county agent in charge of said poor house 
shall not receive any paupers except upon the order of the 
overseer of the poor of the town to which paupers belong, and 
should any town fail to pay for the support of its paupers, the 
county agent may be authorized by- the county board to return 
such paupers to the town to which he or she may belong, or 
the county may sue for and recover the amount due for taking 
care of such paupers. 

Sec. 5. The county agent shall, as often as required by 
the county board, make full and complete reports, under oath, 
of all moneys received and expended by him, as such county 
agent, and shall furnish such other information in relation to 
the poor house and farm as may be required of him. 



TUITION OF PAUPER CHILDREN. 



AN ACT requiring County Boards to pay for the Tuition of Pauper Children 
kept in Poor Houses. Approved May 24, 1877. In force July 1, 1877. 



Tuition of 
pauper chil- 
dren. 



To whom paid, 



Sec. 1. County Boards shall order to be paid out of the 
county treasury a just and equitable sum of money for the 
tuition of pauper children residing in the county poor house, 
and attending any district school in this State. 

Sec 2. Said money shall be paid to the Township Treas- 
urer of the Township in which said district is situated, and 
said Treasurer shall place said money to the credit of the 
district where said pauper children attend school. 



DIY. VI.] TOWNSHIP INSURANCE COMPANIES. 201 



DIVISION VI. 

TOWNSHIP INSURANCE COMPANIES. u2£Y 

In Force 
o. * r* ii July 1,1874. 

Section 1. Any number of persons, not less than twenty- i_ .,_* 
five, residing in any congressional or political township, or in organization of 
one or more adjoining congressional or political townships in company? 
this State, not exceeding six in number, and without regard to 
county lines, who collectively shall own property of not less 
than fifty thousand dollars in value, which they desire to have 
insured, may form an incorporated company for the purpose 
of mutual insurance against loss or damage by fire or lightning. 

Sec. 2. Such persons shall file with the auditor of public File deeiara- 
accounts a declaration of their intention to form a company auditor. 
for the purposes expressed in the preceding section, which 
declaration shall be signed by all the corporators, and shall 
contain a copy of the charter proposed to be adopted by them. 
Such charter shall set forth the name of the corporation, which charter? 1155 ° f 
shall embrace the name of the township in which the business 
office of such company is to be located and the intended dura- 
tion of the company, and if it is found conformable to this act, 
and not inconsistent with the laws and Constitution of this 
State, the auditor shall thereupon deliver to such persons a 
certified copy of the charter, which, on being filed in the office certified copy. 
of the county clerk of the county where the office of such 
company is to be located, shall be their authority to organize 
and commence business. Such certified copy of the charter 
may be used in evidence for or against said company, with the 
same eifect as the original : Provided, that such charter so Proviso, 
obtained shall be subject to control of and modification by the 
General Assembly. (1) 

(1) Form of Declaration of Intention to form Company. 
"We, the undersigned, residing in the political township of [insert 
name of township as known for township organization. If it is merely a 
congressional to unship and not under township organization, then say, Con- 
gressional township No. , giving the number thereof according to 

descnption of the U. S. government], in the county of , and State 

of Illinois [or of the political or congressional townships of , 

describing them as above, being adjoining townships in the State of Illi- 
nois, not exceeding six in number, or as the case may be], who collec- 
tively own property of not less than fifty thousand dollars in value, 
which we desire to have insured, hereby declare our intention to 
form an incorporated company for the purpose of mutual insurance 
against loss or damage by fire or lightning, according to the statute 
in such case made and provided. The following is a copy of the 



202 



TOWNSHIP INSURANCE COMPANIES. 



[diy. YI. 



Directors. 



Election. 



When held. 



Cumulative 
voting- 



Sec. 3. The number of directors shall be nine — five of 
■whom shall constitute a quorum to do business — to be elected 
from the corporators by ballot, and hold their offices until their 
successors are elected and qualified. In the election of the 
first board of directors each corporator shall be entitled to one 
Tote. All subsequent elections, except to fill vacancies, shall 
be held at the annual meeting of the company, which shall be 
on the first Tuesday after the first Monday of January in each 
year, and every person insured shall be entitled to as many 
votes as there are directors to be elected, and an equal addi- 
tional number for each five hundred dollars that he may be 
insured in the company, and may cast the same in person or 
by proxy, distributing them among the same or a less number 
of candidates than the number of directors to be elected, or 
cumulating them upon one candidate, as he shall think fit. 



charter proposed to be adopted by us for the purpose aforesaid. 
[Here insert copy of charter']. 
In testimony whereof we have hereunto subscribed our names, 

this day of , A.D. 18—. 

[Signed by all the corporators.} 

Tli<e form, of clvarter contemplated by this act will be drawn to suit the wishes 
of the corporators in each case. The following- is given as a general form of charter, 
which may be varied to suit circumstances, and which is designed to be inserted in 
the foregoing form of declaration at the place therein indicated. 

Form of Charter for Township Mutual Insurance Company. 
We, E. B., A. T. and H. P. [giving the names of all the corporators'], 

residing in the township of [insert as in the form of declaration 

of intention to organize], in the county of , and State of Illinois, 

do propose the following as th,e charter adopted by us, for the pur- 
pose of a mutual insurance company, pursuant to the statute in such 
case made and provided. 

1. The name of said company shall be The Township Mutual 

Insurance Company, and its business office shall be at , in said 

township of , in the county of , and State of Illinois. 

2. The intended duration of said company shall be^ years. 

3. The object of said company shall be to engage in and carry on 
the business of a mutual insurance against loss or damage by fire or 
lightning within the limits of the township [or townships] above 
named. 

4. Said company shall have and possess all the powers and author- 
ity prescribed by' an act of the General Assembly of the State of 
Illinois, in relation to township insurance companies. 

In witness whereof we have hereunto set our hands, this day 

of , A.D. 18— 

[Signed by all the corporators.] 

In ll.ru of the foregoing general declaration of the object and powers of the 
company, the same may be set out specifically as the corporators desire, placing any 
restrictions upon the cbmpanv that may be deemed advisable, within the statute. 
Theofiice or place of busines's of the company may be set forth in the charter if 
deemed proper, or it may be left with the company to fix the same, from time to 
time, as circumstances shall dictate. 

In the absence of specifications in the charter, the act itself will be the charter of 
authority or ground for the acts and doings of the company, and for that purpose 
reference can be thereto had. 



DIV. VI.] TOWNSHIP INSURANCE COMPANIES. 203 

Sec. 4. The directors shall elect from their number a presi- officers. 
dent and a treasurer, and shall also elect a secretary, who may 
or may not be a member of the company, all of whom shall 
hold their office for one year, and until their successors are 
elected and qualified. 

Sec. 5. The treasurer and secretary shall each give bonds Treasurer and 
to the company for the faithful performance of their duties, glv^bond 
in such amounts as shall be prescribed by the board of directors. 

Sec. 6. Such corporation and its directors shall possess the Powers of 
usual powers and be subject to the usual duties of corporations corporatlon ' 
and directors thereof, and may make such by-laws, not incon- 
sistent with the Constitution or laws of this State, as may be 
deemed necessary for the management of its affairs, in accord- 
ance with the provisions of this act ; also to prescribe the duties 
of its officers, and fix their compensation, and to alter and 
amend its by-laws when necessary. 

Sec. 7. Any person owning property in the district for which who may 
any such company is formed, if he resides in the county in members. 
which such district is in whole or in part situated, may become 
a member of such company by insuring therein, and shall be 
entitled to all the rights and privileges appertaining thereto ; 
but a person not residing within the district for which the com- 
pany is forme.d shall not become a director of such company. 

Sec. 8. Such company may issue policies only on detached May issue 
dwellings, barns (except livery, boarding and hotel barns), and pollcies - 
such property as may properly be contained therein, for any 
time not exceeding five years, and not to extend beyond the 
limited duration of the charter, and for an amount not to 
exceed three thousand dollars on any one risk. All persons 
so insured shall give their obligations to the company, binding obligation by 
themselves, their heirs and assigns to .pay their pro rata share P erson insured, 
to the company of the necessary expenses and of all losses by 
fire or lightning which may be sustained by any member thereof 
during the time for which their respective policies are written ; 
and they shall, also, at the time of effecting the insurance, pay 
such percentage in cash, and such other charge as may be Cash premium. 
required by the rules or by-laws of the company. 

Sec. 9. Any such company may classify the property classify 
insured therein at the time of issuing policies thereon, under propeity - 
different rates, corresponding as nearly as may be to the greater 
or less risk from fire or lightning, and loss, which ma/ attach 
to each several building insured. 

Sec. 10. No such company shall insure any property beyond Not insrre 
the limits of the district comprised in the formation of the of S C rict ni<J 
company, nor shall they insure any property within the limits 



201 



TOWNSHIP INSURANCE COMPANIES. 



[DIV. VI. 



Notice of loss. 

1877. 
Adjustment. 



Convene, 
d. rectors. 



Committee. 



Failure to 
agree— appeal. 



Committee of 
reference. 



Award in 
v riting. 



Pay of com- 
mittee. 



Paid by claim- 
ant, when. 



Loss, how paid 



Assessment. 



President 
notify 
members of 
lent. 



of any city containing over twelve thousand inhabitants at the 
time of the organization of such company. 

Sec. 11. Every member of such company who mav sus- 
tain loss or damage by fire or lightning, shall immediately no- 
tify the President of such company, or in his absence the 
Secretary thereof, stating the amount of damage or loss claimed, 
and if not more than fifty dollars (850), then the President and 
Secretary shall proceed to ascertain the amount of such loss or 
damage and adjust the same. If the claim for damage or loss 
shall be an amount greater than fifty dollars ('850). then the 
President of such company or in case of his absence the Secre- 
tery thereof, shall forthwith convene the Directors of such 
company, whose duty it shall be when convened to appoint a 
committee of not less than three members of such company to 
ascertain the amount of such damage or loss. If in either 
case there is a failure of the parties to agree upon the amount 
of such damage or loss, the claimant may appeal to the Judge 
of the County Court of the county in which the office of such 
company is located, whose duty it shall be to appoint three 
persons as a committee of reference, who shall have full au- 
thority to examine witnesses and to determine all matters in 
dispute and shall make their award in writing to the President 
of such company, and such award shall be final. The pay of 
said committee shall be two dollars (82.00) per day for each 
day's service so rendered, and four cents for each mile neces- 
sarily traversed in the discharge of their duties, which shall be 
paid by the claimant, unless the award of said committee shall 
exceed the sum offered by the company in liquidation of such 
loss or damage, in which case said expense shall be paid by 
the company. 

Sec. 12. Whenever the amount of any loss shall have been 
ascertained, which exceeds in amount the cash funds of the 
company, the president shall convene the directoos of said 
company, who shall make an assessment upon all the property 
to the amount for which each several piece of property is 
insured, taken in "connection with the rate of premium under 
which it may be classified. 

Sec. 13. It shall be the duty of the president, whenever 
such assessment shall have been made, to immediately notify 
every person composing such company, personally, by an 
agent or by a letter sent to his usual post office address, of the 
amount of such loss, and the sum due from him as his share 
thereof, and of the time when and to whom such payment is 
to be made ; but such time shall not be less than thirty nor 
more than ninety days from the date of such notice. 



D1V. VI. j TOWNSHIP [NSUBANCE COMPANIES, 205 

Sec. 14. Suits at law may be brought against any member suit to recover 
oi' such company who shall neglect or refuse to pay any assess- a8Sessmeut - 
ment made upon him by the provisions of this act ; and the 
directors of any company so formed, who shall willfully refuse 
or neglect to perform the duties imposed upod them by the 
provisions of this act, shall be liable, in their individual 
capacity, to the person sustaining such loss. Suits at law may Suit for losses# 
also be brought and maintained against any such company, fyy 
members thereof, for losses sustained, if payment is withheld 
after such losses have become due. 

Sec. 15. It shall be the duty of the secretary to prepare Annual 
an annual statement, showing the* condition of such company statement - 
on the thirty-first day of December, and present the same at 
the annual meeting. 

Sec. 16. Any member of such company may withdraw 
therefrom bv surrendering his policy for cancellation at any Members may 

" . . withdraw. 

time while the company continues the business for which it was 
organized, by giving notice in writing to the secretary thereof, 
and paying his share of all claims then existing against said 
company : Provided, that by the withdrawl of any such mem- proviso. 
ber, the number of the members remaining in the company 
shall not be reduced below the original number of corporators, number 1 ?? 
or that the assets will not be reduced below the amount at the corporators, 
time of organization : Provided further, the company shall m 

» . . Terminate 

have power to cancel or terminate any policy by giving the in- policy. 
sured notice to that effect. 

Sec. IT. It shall be the duty of the president and secre- 
tary of every such company on the first day of January of each Report to 
year, or within one month thereafter, to prepare, under their auditor - 
own oath, and transmit to the auditor of public accounts a 
statement of the condition of the company on the thirty-first 
day of December then next preceding, in such form as the 
auditor may direct. If, upon examination, he is of the opinion 
that such company is doing business correctly, in accordance If satisfactory 
with the provisions of this act, he shall thereupon furnish the 
company his certificate, which shall be deemed authority to 
continue business the ensuing year, subject, however, to sub- Certificate t0 
sequent provisions of this act. For such examination the com- continue 
pany shall pay five dollars, and one dollar for the certificate. 
Each company shall pay, at the time of organization, ten dol- 
lars for the auditor's services, all of which shall be paid into 
the State treasury, and applied to the insurance fund. (1) 

(1) The audit >r could in a proper ease terminate the power of the company 
■under the above section, to continue business, by simply zefusing to grant the certi- 
ficate of renewal. Opinion of Att'y Gen'l Edsall. 



206 TOWNSHIP INSURANCE COMPANIES. [DIV. VI. 

Dissolution. Sec. 18. Any such company may be proceeded against and 

dissolved in the manner and upon the same conditions as pro- 
vided in case of other insurance companies incorporated in this 
State. 



DIV. VII.] ASSESSMENT AND COLLECTION OF TAXES. 207 

DIVISION VII. 
REVENUE. 

Lawn 1871-72, 

ASSESSMENT AND COLLECTION OF TAXES. ffiiJao^Bt 

Section 1. The property named in this section shall be Property to be ; 
assessed and taxed, except so much thereof as may be, in this taxed, 
act, exempted :(1) 

(l) The term " Property," wherever used in this act, is held to include every 
tangible thing, being the subject of ownership, whether animate or inanimate, real 
or personal. Xleghom v. Posttewaite, 43 111. R., 437. 

The term, personal property , applies as well to notes and moneys as to goods and 
chattd*; the possession of which is prima facie evidence of ownership. BrovmeU v. 
Dixon. 37 111. R., 197. 

County orders and county bonds are subject to taxation. Opinion Auditor 
Miner, April 2, 1867; June 13. 1868. 

Money loaned or on deposit in a bank, or a note secured by mortgage, are sub- 
ject to taxation. Opinion Auditor Miner, June 10, 1868; Trustees, etc., y.McConnell, 12 
ill.. EL, 138; People v. Worthington, 21 111, K., 171. 

Shares of Joint stock companies owned in this State are liable to assessment and 
taxation under the laws of this State, whether such companies are located in this 
State or not. Opinion Auditor Miner, July L'5, 1867; See Inhabitants Great Barring- 
tori v. Commissioners Berkshire County, 16 Pick. R., 572. 

Bonds deposited jvith the auditor to secure the redemption of bills issued by 
banks, are subject to taxation. Bank of Republic v. County of Hatnilton, 21 111. R., 54. 

Bonds that are void cannot be rendered valid by assessment and payment of taxes 
on them. Marshal! Co. v. Cook, 38 111. R., 58. 

In case of an agreement in writing, wherein A. agrees to convey to B. certain lauds 
on the payment of a stipulated sum, and B. had paid a portion, the amount paid had 
been assessed, and the board of reviewers had ordered said assessment to be stricken 
from the list, deciding-that said credits were not taxable ; it is the opinion that the 
board exceeded their authority, which is thought to extend only to correction of 
erroneous valuations. As to whether property is taxable, the board of supervisors 
proceed under section 33 of this act ; therefore the assessment should not be stricken 
from the list on proceedings already had. That the sums payable by B. are "cred- 
its " and subject to taxation, to the extent the owner A. believes will be received, or 
can be collected. See I 3. Opinion Auditor Miner, January 5, 1867. 

The consideration received on sale of land, whether money or notes, must be taxed, 
notwithstanding the land is still taxed. Opinion Auditor Miner, April 18, 1867; 
People v. Worthington. 21 111. R., 171. 

For the purpose of taxation, *the law regards lands and improvements as a 
whole, except for obtaining a correct valuation. When the valuation is ascertained, 
and tax charged.it is against the tract or lot, including improvements. If sold for the 
tax, all is sold together. Arrangements between lessor and lessee are not to be con- 
sidered by the revenue officers. Opinion Auditor Miner, April 30. 1867. But where a 
building "is set on posts to denote its temporary condition, under a provision in the 
lease to remove it, it is held to be personal property. Bullou v. Jones et al., 37 111. R., 
95 ; see also Titus el al. v. Mabee et al., 25 ill. R., 257. 

Warehouses and other buildings on railroad lands, under lease, are taxable as 
separate property. Opinion Auditor Miner, May 21, and June 1 ( J, 1867, 

Moneys ami credits of all persons in this State are taxable in this State with- 
out reference to the temporary location thereof. Opinion Auditor Miner, April 
13, 1867. 

While the transient visit of a person for a time at a place may not make him a 
resident white there, yet, if he has a regular and permanent business there, such as 
the loaning of money for himself and others, and remains there continuously for a 
time sufficiently extended to enable him to transact that business, which is his only 
known business or occupation, that will be regarded as his place ot residence, so as 
to subject his own moneys and credits, emploved in such business, and also the 
moneys and credits of other persons who may reside out of this State, but which are 
used and controlled by him as their agent, to' taxation at such place, if in this State ; 
and this although he may at the same time have a home or domicile in another 
State, where he also resides during certain limited portions of the year. Tazewell Co. 
v. Davenport, 40 III. R., 197. 

The, principles of " equality" and " uniformity" are indispensible to all legal 
taxation, general or local. City of Chicago v. Lamed et al., 34 111. It., 203. The rule of 
uniformity of taxation prescribed in the constitution, requires that one person shall 

14 



208 



REVENUE. [DIV. VII. 

First — All real and personal property in this State. 

Second — All moneys, credits, bonds' or stocks, and other 
investments, the shares of stock of incorporated companies and 
associations, and all other personal property, including prop- 
erty in transitu to or from this State, used, held, owned or 
controlled by persons residing in this State. 

Third — The shares of capital stock of banks and banking 
companies doing business in this State. 

Fourth — The capital stock of companies and associations 
incorporated under the laws of this State. 

PROPERTY EXEMPT FROM TAXATION. 

Sec. 2. All property described in this section, to the extent 
herein limited, shall be exempt from taxation, that is to say :(1) 

not be compelled to pay a greater proportion of the taxes, according to the value of 
his property, than another. Bureau County v. Chicago, etc., R. R. Co., 44 111. R„ 230. 
"Under this rule, a portion of the citizens of a town could not be exempted from road 
taxes while the burden is imposed on others. O Kane. v. Treat et al., 25 111. R.. 557. 
But a tax imposed on a corporation as such, is not a tax on the person or property of 
the corporation or stockholders. Ducat v. City of Chicago. 48 111. R., 173. 

JLn assessment, commonly called special assessment for street improvement in a 
city, is not a tax, and the same rules applicable to one do not necessarily applv to 
the others. City of Chicago v. Colby, 10 111. R., 614 ; Canal Trustees v. City of Chicago, 12 
111. R., 406. 

In the construction of statutes, it will never be presumed that the legislature 
intended to abandon its rights^as to the mode of assessing and collecting the State 
revenue. Bank of the Republic v. Hamilton County, 27 111. R.. 54. 

The Jurisdiction of the State, on the subject of taxation for State purposes, is 
supreme, over which the government of the United States can have no power or 
control. State Treasurer v. Collector of Sangamon County, 28 111. R., 512 ; The People v. 
Bradley et al, 39 111. R., 130. But the federal constitution limits the power of taxation 
by a State in express terms as to imports and exports, and by implication, as to those 
instruments employed by the general government to carry out its authority as gov- 
ernment bonds, and the operation of such instruments. The People v. Bradley tt al., 
39 111. R., 130. 

A law of a State including steamboats as a portion of the property of an individual 
subject to State taxation, is valid. It does not interfere with the power of Congress 
to regulate commerce, nor is it a tonnage duty. Perry v. Torrence. 8 Ohio R., 521. 

A sum of money, certain to be received annually and at stated periods, is, within 
the meaning of the tax law, an annuity, unless the same be receivable as a pension, 
a salary, or as compensation for labor or services subsequently to be performed. 
Wet more v. Stale. IS Ohio R., 77. 

The term "investment in stocks," embraces within its meaning shares in the 
capital stock of banks and banking associations, and includes as well shares in 
the capital stock of national banks. Ihe People v. Bradley et al.. 39 111. R. 131. 

The now constitution declares, Art. 9. Sec. 1. The General Assembly shall pro- 
vide such revenue as may be needful, by levying a tax. by valuation, so that every 
person and corporation shall pay a tax in proportion to the value of his. her or its 
property — such value to be ascertained by some person or persons, to be elected or 
appointed in such manner as the General Assembly shall direct, and not otherwise; 
but the General Assembly shall have power to tax peddlers, auctioneers, brokers, 
hawkers, merchants, commission merchants, showmen, jugglers, inn-keepers, gro- 
cery-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express 
interests or business, venders of patents, and persons or corporations, owning or 
using franchises and privileges, in such manner as it shall, from time to time, direct 
bv general law, uniform as to the class upon which it operates. 

"Sec. 2. The specification of the objects and subjects of taxation shall not deprive 
the General Assembly of the power to require other subjects or objects to be taxed. 
in such manner as may be consistent with the principles of taxation fixed in this 
constitution. 

(1) Wo provision of law is Jcnotcn, exempting school lands from taxation, which 
have reverted on foreclosure of mortgage. Opinion Auditor Dubois. May 7. 18(34. 

In order to exempt a school - house from taxation, it should be held by the 
school directors under such title as will give them the right to possess and control 



DIV. VII.] PROPERTY EXEMPT FROM TAXATION. 200 

First — All lands donated by the United States for school school lands 

purposes, not sold or leased. All public school -houses. All and hou * es ' 
property of institutions of learning, including the real estate 
on which the institutions are located, not leased by such insti- 
tutions, or otherwise used with a view to profit. 

Second — All church property actually and exclusively used church prop- 
for public worship, when the land (to be of reasonable size for erty " 
the location of the church building) is owned by the congrega- 
tion. 

Third — All lands used exclusively as graveyards or grounds Graveyards, 
for burying the dead. 

Fourth — All unentered government lands; all public build- Government _ 
ings or structures of whatsoever kind, and the contents thereof, property, 
and the land on which the same are located, belonging to the 
United States. 

it at all times for the use of the district. Pace v. County Commissioners of Jefferson Co., 
20 111. R., 644. 

In regard to houses used for public worship, the intent of the law 
exempting them is, that they shall be used for sacred purposes and not otherwise. 
That part so used may be exempt, and portions otherwise used may be taxed. First 
M. E. Church, etc., v. CUy of Chicago. 26 111. R., 487. 

Ctiurch property may be assessed for special purposes, though not liable 
for ordinary taxes. City of Ottawa v. Fisher et al., 20 111. R., 423; The Trustees of Uie 
Illinois and Michigan Canal v. The CUy of Chicago, 12 111. R., 403. 

A parsonage owned by a church is not exempt from taxation. Opinion Auditor 
Minsk, April 11, 1867; Lippincott, December 22, 1869 ; St. Peter's Churchy. Commis- 
sioner* Scott Co., 12 Minn. R., 395. 

If a seminary is established as such by law, the lot on which it stands is not tax- 
able. But if a private school, although called a "seminary," conducted for private 
gain" or profit, it is not exempt from taxation. Opinion Auditor Miner. February 
14. 1868. 

Horses and carriages carrying the mail of the United States, if owned by the 
government, are exempt from taxation, but not so if owned by individuals. Opinion 
Auditor Mixer, June 27, 1867. 

It is only the property owned by the State that is exempt from taxation, not that in. 
which it may ultimately share in avails. Ryan v. Gallatin County, 14 111. R., 83. 

The exemption of swamp lands front taxation ceases when sold by the 
county, and it is presumed that such lands reverting on foreclosure of mortgage 
would not be exempt under the law. Opinion Auditor Miner. May 13, 1867. 

The new constitution concerning this and other subjects of exemption, 
declares, Art. 9, Sec. 3. The property of the State, counties and other municipal cor- 
porations, both real and personal, and such other property as may be used exclusively 
for agricultural and horticultural societies, for schools, religious, cemetery and. 
charitable purposes, may be exempted from taxation ; but such exemption shall be 
only by general law. In the assessment of real estate, incumbered by public ease- 
ment, any depreciation occasioned by such easement, may be deducted in the valu- 
ation of such property. 

Corn, wheat, oats and other field products, and beef, pork, and other articles of 
provisions, are not exempt from taxation. Opinion Auditor Miner, January 7, 1867. 

It is within the constitutional power of the legislature to exempt property from, 
taxation, or to commute the general rate for a fixed sum. Illinois Central Railroad 
Co. v. County of McLean, 17 111. R.. 293. But not so i n regard to persons or class of persons. 
Hunsackeret al. v. WrigUet al., 30 111. R.. 146; O'Kane v. Treat eta/., 25 111. R., 561. 

The assessment of public taxes, or special assessment for public improvements 
upon the public property of the State, county or municipal corporations, is a mere 
question of policy. The power exists to make it bear its share of the one or the other. 
It may be exempt from the one and subjected to the other. Canal Trustees v. City of 
Chicago, 12 111. R., 405; Ross v. Mayor of New York. 3 Wend. R., 335; cited and sus- 
tained in case of Biggin- v. City of Chicago. 18 111. R.. . 

JLaws exempting property front, taxation, being in derogation of equal 
rights should be construed strictly; therefore, held, that property mentioned as 
exempt is only exempt from taxation when used exclusively for (he purposes men- 
tioned. If used for other purposes, it is liable to taxation, no matter what purposes 
the proceeds are in future to be applied. Cincinnati College v. State, 19 Ohio R., 110. 



210 REVENUE. [dIY. VII, 

state property. Fifth — All property of every kind belonging to tne State 

of Illinois. 
Poor houses. Sixth — All property belonging to any county, town, village 

or city, used exclusively for the maintenance of the poor. All 
swamp lands. swam p or overflowed lands belonging to any county, so long as 
™ w.. v. -,* -the same remain unsold by such countv. All public buildings 

Public build- , , J . . ." . r , ° 

iugs. belonging to any county, township, city or incorporated town, 

with the ground on which such buildings are erected, not 
exceeding hi any case ten acres. 
charitable in- Seventh — All property of institutions of purely public 
rc t iibrarle£ ub " charity, when actually and exclusively used for such charitable 
purposes, not leased or otherwise used with a view to profit, 
and all free public libraries. 
Fire engines, Eighth — All fire engines and other implements used for 
* lc - the extinguishment of fires, with the building used exclusively 

for the safe -keeping thereof, and the lot, of reasonable size, on 
which the building is located, when belonging to any city, vil- 
lage or town. 
Market houses. Ninth — All market -houses, public squares or other publ'ic 
grounds used exclusively for public purposes. All works, 
waterworks, machinery and fixtures belonging exclusively to any town, 
village or city, and used exclusively for conveying water to 
such town, village or city. 
Agricultural Tenth — All property which may be used exclusively by 

society prop- societies for agricultural, horticultural, mechanical and philo- 
sophical purposes, and not for pecuniary profit. 

RULES FOR VALUING PERSONAL PROPERTY. 

Sec. 3. Personal property shall be valued as follows :(1)* 
cash valuation. First — All personal property, except as herein otherwise 
directed, shall be valued at its fair cash value. 

(1) In valuing property the assessor has no right to discriminate for or against 
anv class of property, whether it be bank stock or other property. The only criterion 
known to the law is" the actual monev worth of the property. Opinion Auditor Miner, 
May 28, September 25. 1868, May 29. i867. And this may be on a " greenback" basis, 
so called. Opinion Auditor Mixer. May 21. 1866. 

In assessing the value of a railroad for purposes of taxation, the inquiry should be, 
what is the property woith, to be used for the purposes for which it was designed, 
and not for anv other purposes to which it might be applied, and In all cases it ts 
proper to consider what would a prudent man give for the property as a permanent 
investment, with a view to present and future income, and the assessment should be 
at its present and not future value. State of Illinois v. Illinois Central Eauroad Co., 27 

The first cost of property is no evidence of its value. C. & N. W. E. R. Co. v. Boone 
County, 44 111. R., 211. ,. . , . . . „ 

Choses in action, such as promissory notes, are to be listed at their true value It 
a note is wholly worthless, it is not to be listed at all; if it is of some value, but less 
than its face, it is to be listed at what it is worth. Exchange Bank OHurfkms v. ILncs, 

° Under a lawproviding " for taxing all property in this State according to its true 
value," Held, that capital invested in the business of purchasing hogs and slaughter- 

* Amended, see post p. 297. 



DIV. VII.] RULES FOR VALUATION. 211 

Second — Every credit, for a sum certain, payable either m credits, 
money or labor, shall be valued at a fair cash value for the sum 
so payable ; if for any article of property, or for labor, or ser- 
vices of any kind, it shall be valued at the Current price of 
such property, labor or service 

Third — Annuities and royalties shall be valued at their Annuities, 
then present total value. 

Fourth — The capital stock of all companies and asso ci a- capital stock — 
tions now or hereafter created under the laws of this State, how valued - 
shall be so valued by the State board of equalization as to 
ascertain and determine, respectively, the fair cash value of 
such capital stock, including the franchise, over an(} above the 
assessed value of the tangible property of such company or 
association. Said board shall adopt such rules and principles 
for ascertaining the fair cash value of such capital stock as to 
it may seem equitable and just; and such rules and principles, 
when so adopted, if not inconsistent with this act, shall be as 
binding and of the same effect as if contained in this act, sub- 
ject, however, to such change, alteration or amendment as may 
be found, from time to time, to be necessary by said board : 
Provided, that in all cases where the tangible property or Proviso. 
capital stock of any company or association is assessed under 
this act, the shares of capital stock of any such company or 
association shall not be assessed or taxed in this State. This 
clause shall not apply to the capital stock or shares of capital 
stock of banks organized under the general banking laws of this 
State.* 

RULES FOR VALUING REAL ESTATE. 

Sec. 4. Real property shall be valued as follows : Real estate. 

First — Each tract or lot of real property shall be valued at Jj^s of vaiua- 
its fair cash value, estimated at the price it would bring at a Fair cash value. 
fair, voluntary sale. 

Second — Taxable leasehold estates shall be valued at such Leasehold 
a price as they would bring at a fair, voluntary sale for cash. 

Third — When a building or structure is located on the Buildings on 
right of way of any canal, railroad or other company leased or rJad\ a na ail 
granted for a term of years to another, the same shall be 
valued at such a price as such building or structure and lease 
or grant would sell at a fair, voluntary sale for cash. 

ins and packing pork for sale or transportation, is subject to taxation. Jackson v. 
Steele, 15 Ohio R., 652. 

Our portion of the tax-payers of a county cannot be required to pay more 
taxes in proportion to its value than another portion in tne same county, and a dis- 
crimination cannot be made in this regard against the property of a railroad com- 
pany, and although property is assessed at a low rate, still uniformity must be 
observed. C. & X. W. It. R. Co. v. Boone County, 44 111. R., 240. 

*Amended, see Appendix, post p. 379. 



212 REVENUE. . [BIV. VII. 

Mineral lands. Fourth — In valuing any real property on which there is 
a coal or other mine, or stone or other quarry, the same shall 
be valued at such a price as such property, including the mine 
or quarry, would sell at a fair, voluntary sale for cash. 

PERSONAL PROPERTY WHEN LISTED. 

personal prop- Sec. 5. Personal property shall be listed between the first 
HstedT wheu day of May and the first (lay of July of each year, when re- 
quired by the assessor, with reference to the quantity held or 
owned on the first day of May, in the year for which the 
property is required to be listed. Personal property pur- 
chased or acquired on the first day of May shall be listed by 
or for the person purchasing or acquiring it. 

WHO SHALL LIST AND WHAT LISTED. 

who shall list g E c. 6. Personal property shall be listed in the manner fol- 

andwhat listed. .. . r r «/ 

lowing : 

Personsoffuii First — Every person of full age and sound mind, being a 

iP'-d^t resident of this State, shall list all his moneys, credits, bonds, 
or stocks, shares of stock of joint stock or other companies 
(when the capital stock of such company is not assessed in 

etc ney ' bonds ' this State), moneys loaned or invested, annuities, franchises, 
royalties, and other personal property. 

Money, etc., in- Second — He shall also list all moneys and other personal 
property invested, loaned or otherwise controlled by him as 
the agent or attorney, or on account of any other person or 
persons, company or corporation whatsoever, and all moneys 
deposited, subject to his order, check or draft, and credits due 
from or owing by any person or persons, body corporate or 
politic. 

Property of mi- Third — The property of a minor child shall be listed by 
his guardian, if he have no guardian, then by the father, if 
living; if not, by the mother, if living; and if neither father 
or mother be living, by the person having such property in 
charge. 

of idiot or lun- Fourth — The property of an idiot or lunatic, by his con- 
servator ; or if he has no conservator, by the person having 
charge of such property. 

of wife. Fifth — The property of a wife, by her husband, if of 

sound mind ; if not, by herself. 

Trust property. Sixth — The property of a person for whose benefit it is 
held in trust, by the trustee ; of the estate of a deceased per- 
son, by the executor or administrator. 

Of corporation Seventh — The property of corporations whose assets are 
in the hands of receivers, by such receivers. 



DIV. VII.] LISTING PROPERTY. 21-3 

Eighth — The property of a body politic or corporate, by 
the president, or proper agent or officer thereof. 

Ninth — The property of a firm or company, by a partner of a firm, 
or agent thereof. . 

Tenth — The property of manufacturers and others in the of property in 
hands of agent, by and in the name of such agent, as mer- ian ° agents 
chandise. 

WHERE LISTED AND ASSESSED, AND WHAT HELD TO BE PER- 
SONAL PROPERTY — MANNER OF LISTING.(l) 

Sec. T. Personal property, except such as is required in personal prop- 
this act to be listed and assessed otherwise, shall be listed and erty - 
ass ssed in the county, town, city, village or district where the 
owner resides. 

(V Personal property miist be listed for taxation, in the county, town or dis- 
trict where the owner resides, notwithstanding the property itself may remain and be 
used in another county, as in case of farming implements, stock, etc., upon a farm. 
King ct at. v. McDrewelal.. 31 111. R., 418. Yet if permanently located elsewhere, it may 
be listed there. Mitts, executor, etc., v. Thornton et at., 26 111. R., 300. 

A pen-on cannot choose where his property shall be taxed; this is fixed by law. 
Opinion Auditor Miner, August 17, 1867. 

Ill regard to taxation in eities and incorporated towns, the place and manner 
of taxation will be regulated by their charters. Opinion Auditor Miner, August 17, 
1867: July 22. 1S67; Wilkie v. City oj Pekin, 19 111. R.,160. 

It is not necessary that a person to be amenable to the taxing power, should be a 
citizen of, or domiciled within the State; but he must be a resident. There is a dis- 
tinction in law between residence and clomicil; and a person may have the former in 
one state and the latter iu another. Nor is the liability of taxation placed on the 
ground of a citizenship Tazewell County v. Davenport, 40 111. R., 197. 

A person resieing in this State, acting as agent for a non-resident, is liable to 
tax as asent on securities, taken for money loaned. Opinion Auditor Miner, July 
25. 1867; Tazewell Courdy v. Davenport, 40 111. R., 197. 

Where three executors of an estate reside in the same township — two of them 
within the corporate limits of a village, the other without such limits— and the three 
have possession in law of the taxable moneys, credits, bonds and stocks of the estate, 
the same must, in view of the equities and analogies of the statute (which does not 
expressly provide for such a case), be entered for taxation — one-third as of the place 
of residence of each executor. And this principle would be applicable to a case 
where the executors resided in different townships. Stale v. Mathews. 10 Ohio State R. 

Mereltandise is to be taxed at the place of business of the merchant, which may or 
may not be his residence. Opinion Auditor Miner, August 17, 1868. And where the 
same party has goods in different localities, carrying on business there, the property 
should be listed where it is located. Opinion Auditor Miner. July 16, 1867. 

The stock or interest of a vessel, boat or ship, navigating the waters of this 
State, is taxable where the owner resides, and it is thought that no question concern- 
ing the taxation can arise which could be carried into the United States courts. 
Opinion Auditor Miner, July 20. 1867. The place or situs of a vessel is the place of 
its registration and port from which it regularly departs and returns. WUkey v. City 
of Pekin, 19 111. R.. 160. 

A lease of lands belonging to the State, including canal lands, etc.. with the im- 
provements, may be taxed, and the interest of the tenant sold. LaSalle Manufactur- 
ing Co. v. The City of Ottawa. 16 111. R., 418. 

Leasehold property, belonging to the State, should be valued in the assessment, at 
the price the assessor believes can be obtained for the leasehold, and this should 
include all rights and privileges belonging or in anywise pertaining thereto. Opin. 
Auditor Miner, July 14, 186S. 

The. latv requires that persons owning personal property shall make, sign 
and deliver to the assessor a statement of their property subject to taxation. Town 
of Charlestown v. McCrory, 36 111. R., 4- r >6. 

The fact that property subject to taxation has not been listed, although it improp- 
erly increases the burden of taxation upon the property that is listed, does not render 
the tax wholly void, or authorize the interference of a court of equity. Exchange 
Bank Colu?nbu$ v. Hines, 3 Ohio State R, 1. 

The assessor has no right to double the assessed value of property belonging to the 
estate of a deceased person on account of any act of the executor. Leper v. Pulsifer, 
37IU.R..110. 



214 REVENUE. [DIV. VII. 

what held The capital stock and franchises of corporations and per- 

]?ste e d a a n ndS en sons i except as may be otherwise provided, shall be listed and 

sessed. taxed in the county, town, district, city or village where the 

principal office or place of business of such corporation or per- 

• son is located in this State. If there be no principal office or 

place of business in this State, then at the place in this State, 

where any such corporation or person transacts business. 

Live stock and Sec. 8. "When the owner of live stock or other personal 
™ pr ° per y * property connected with a farm does not reside thereon, the 
same shall be listed and assessed in the town or district where 
the farm is situated : Provided, If the farm is situated in 
several towns or districts, it shall be listed and assessed in the 
town or district in which the principal place of business on 
such farm shall be. 

Property in Sec. 9. The property of manufacturers and others, in the 

agen " 1 lands of agents, shall be listed and assessed at the place where 
the business of such agent is carried on. 

improvements Sec. 10. When real estate is exempt in the hands of the 

exempt. es a e holder of the fee, and the same is contracted to be sold, the 
amount paid thereon by the purchaser, with the enhanced 
value of the investment and improvement thereon until the fee 
is conveyed, shall be held to be personal property, and listed 
and assessed as such, in the place where the land is situated. 

Personal prop- Sec. 11. Personal property, in transitu, shall be listed and 
"' assessed in the county, town, city or district where the owner 

Proviso. resides : Provided, If it is intended for a business, it shall be 

listed and assessed at the place where the property of such 
business is required to be listed. 

Nurseries. Sec. 12. The stock of nuseries, growing or otherwise, in 

the hands of nurserymen, shall be listed and assessed as mer- 
chandise. 

Banks, brokers, Sec. 13. The personal property of banks or bankers, brok- 
ers, stock-jobbers, insurance companies, hotels, livery stables, 
saloons, eating houses, merchants and manufacturers, ferries, 
mining companies, and companies not specially provided for in 
this act, shall be listed and assessed in the county, town, city, 
village or district where their business is carried on, except 
such property as shall be liable to assessment elsewhere, in the 
hands of agents. All persons, companies and corporations in 

steamboats,etc. this state owning steamboats, sailing vessels,- wharf- boats, 

When a party makes out and delivers to the assessor a list of his taxable property, 
which is accepted without question, that officer has no power afterward, of his own 
motion, to alter it without first giving the party assessed notice. If he does a court 
of equity will grant relief by injunction. Clcghom v. Postlewaite el al., 43 111. R., 431. 

The assessor is to value real estate himself, and need not give notice thereof to the 
person assessed. Opinion Auditor Miner, May 6, 1867. 



PTY. VII.] LISTING PROPERTY. 215 

bargee and other water craft, shall be required to list the same 
•lent and taxation in the county, town, city, yillage 
or district in which the same may belong or be enrolled, reg- 
istered or licensed, or kept, when not enrolled, registered or 
licensed. 

-. 14. The personal property of gas and coke companies, Gas and coke 
except the pipes laid down, shall be listed and assessed in the com P ames - 
town, yillage, district or city where the principal works are 
located. Gas mains and pipes, laid in roads, streets or alleys, Pipes, 
shall be held to be personal property, and listed and assessed 
as such, in the town, district, village or city where the same 
are laid. 

Sec. 15. The personal property of street railroad, plank street railways, 
road, gravel road, turnpike or bridge companies, shall be listed p an roa s ' e ( 
and assessed in the county, town, district, village or city where 
the principal place of business is located. The track, road or 
bridge shall be held to be personal property, and listed and 
assessed as such, in the town, district, village or city where the 
same is located or laid. 

Sec. 16. The horses, stages and other personal property of stage compa- 
stage companies or persons operating stage lines, shall be listed 
and assessed in the county, town, city or district where they 
are usually kept. 

Sec. 17. The -personal property of express or transporta- Express com- 
tion companies shall be listed and assessed in the county, town, pames * 
district, village or city where the same is usually kept. 

Sec. 18. No consignee shall be required to list, for taxa- consignee of 
tion, the value of any property consigned to him for the sole property " 
purpose of being stored or forwarded, except to the extent of 
his interest in such property. 

Sec. 19. Persons required to list property on behalf of Persons. listing 
others, shall list it in the same place in which they are others 1 , 
required to list their own ; but they shall list it seperately from 
their own, specifying in each case the name of the person, 
estate, company or corporation to whom it belongs. 

Sec. 20. Persons, for themselves or others, holding bonds Accrued inter- 
or stocks of any kind, the principal of which bonds or stocks Impted bonds, 
has been or may hereafter be exempted from taxation, shall 
list the amount of accrued interest on such bonds, without 
regard to the time when the same is to be paid. 

Sec. 21. Where a deed for real estate is held for the pay- Money secured 
ment of a sum of money, such sum, so secured, shall be held y rea estate - 
to be personal property, and shall be listed and assessed as 
credits. 

Sec. 22. The owner of personal property removing from 



216 REVENUE. [DIV. VH. 

Owner of prop- one county, town, city, village or district, to another, between 

erty removing. the firgt day of May and the firgt day of j^ ghaU be 

assessed in either, in which he is first called upon by the 
assessor. The owner of personal property moving into this 
State from another State, between the first day of May and 
the first day of July, shall list the property owned by him on 
the first day of May of such year, in the county, town, city, 
Proviso. village or district in which he resides : Provided, If such per- 

son has been assessed, and can make it appear to the assessor 
that he is held for tax of the current year on the property, in 
another State, county, town, city, or district, he shall not be 
again assessed for said year. 
Questions Sec. 23. In all questions that may arise under this act as 

taSe colmty t1ne proper place to list personal property, or where the same 
b° countv ded cannot De listed as stated in this act, if between several places 
board— if in the same county, the place for listing and assessing shall be 
ferent counties, determined and fixed by the county board ; and when between 
by auditor. different counties or places in different counties, by the audi- 
tor of public accounts ; and when fixed in either case, shall be 
as binding as if fixed by this act. 
schedule of Sec. 24. Persons required to list personal property, shall 

erty. na prop " make out and deliver to the assessor, at the time required, a 
schedule of the numbers, amounts, quantity and quality of all 
personal property in their possession, or under their control, 
required to be listed for taxation by them. It shall be the 
duty of the assessor to determine and fix the fair cash value of 
all items of personal property. • 

FORM OF SCHEDULE. 

Form of sched- Sec. 25. Such schedule, when completed by the assessor, 
in extending in a separate column the value of such property, 
shall truly and distinctly set forth : 

First — The number of horses of all ages, and the value 
thereof. 

Second — The number of cattle of all ages, and the value 
thereof. 

Third — The number of mules and asses of all ages, and 
the value thereof. 

Fourth — The number of sheep of all ages, and the value 
thereof. 

Fifth — The number of hogs of all ages, and the value 
thereof. 

Sixth — Every steam engine, including boilers, and the 
value thereof. 



DIV. VII.] FORM OF SCHEDULE. 217 

Seventh — Every fire or burglar -proof safe, and the value 
thereof. 

Eighth — Every billiard, pigeon-hole, bagatelle or other 
similar tables, and the value thereof. 

Ninth — Every carriage and wagon, of whatsoever kind, 
and the value thereof. 

Tenth — Every watch and clock, and the value thereof. 

Eleventh — Every sewing or knitting machine, and the value 
thereof. 

Tw elf tli — Every piano -forte, and the value thereof. 

Thirteenth — Every melodeon and organ, and the value 
thereof. 

Fourteenth — Every franchise, the description and the value 
thereof. 

Fifteenth — Every annuity and royalty, the description and 
the value thereof. 

Sixteenth — Every patent right, the description and the 
value thereof. 

Seventeenth — Every steamboat, sailing vessel, wharf -boat, 
barge or other water craft, and the value thereof. 

Eighteenth — The value of merchandise on hand. 

Nineteenth — The value of material and manufactured arti- 
cles on hand. 

Twentieth — The value of manufacturers' tools, implements 
and machinery (other than boilers and engines, which shall 
be listed as such). 

Twenty -first — The value of agricultural tools, implements 
and machinery. 

Twenty - second — The value of gold or silver plate ana 
plated ware. 

Twenty -third — The value of diamonds and jewelry. 

Twenty -fourth — The amount of moneys of bank, banker, 
broker or stock-jobber. 

Twenty -fifth — The amount of credits of bank, banker, 
broker or stock-jobber. 

Twenty -sixth — The amount of moneys other than of bank, 
banker, broker or stock-jobber. 

Twenty -seventh — The amount of credits other than of 
bank, banker, broker or stock-jobber. 

Twenty -eighth — The amount and value of bonds or stocks. 

Twenty -ninth — The amount and value of shares of capi- 
tal stock of companies and associations not incorporated by 
the laws of this S*ate. 

Thirtieth — The value of property such person is required 
to list as a pawnbroker. 



218 



REVENUE. 



[DIV. VII. 



Assessor m ay- 
admin istor 
oath. 



Thirty -first — The value of property of companies and cor- 
porations other than property hereinbefore enumerated. 

Thirty - second — The value of bridge property. 

Thirty-third — The value of property of saloons and eat- 
ing-houses. 

Thirty -fourth — The value of household or office furniture 
and property. 

Thirty -fifth — The value of investments in real estate and 
improvements thereon, required to be listed under this act. 

Thirty -sixth — The value of all other property required to 
be listed. 

Sec. 26. That whenever the assessor shall be of opinion 
that the person listing property for himself or for any other per- 
son, company or corporation, has not made a full, fair and 
complete schedule of such property, he may examine such per- 
son under oath, in regard to the amount of the property he is 
required to schedule, and for that purpose he is authorized to 
administer oaths, and if such person shall refuse to answer, 
under oath, and a full discovery make, the assessor may list 
the property of such person, or his principal, according to his 
best judgment and information. If the person so examined 
shall swear falsely, he shall be guilty of perjury, and pun 
ished accordingly. 



RULES FOR LISTING CREDITS. 



Rules for list- Sec. 27. In making up the amount of credits which any 
deducfSn S aT- P erson * s required to list for himself or for any other 
lowed for bona person, company or corporation, he shall be entitled to deduct 
from the gross amount of credits, the amount of all bona fide 
debts owing by such person, company or corporation, to any 
other person, company or corporation, or a consideration 
received, but no acknowledgment of indebtedness not founded 
on actual consideration, believed when received to have been 
adequate, and no such acknowledgment made for the purpose 
of being so deducted, shall be considered a debt within the 
meaning of this section ; and so much only of any liability, 
as surety for others, shall be deducted as the person making 
out the statement believes he is legally and equitably bound, 
and will be compelled to pay on account of the inability or 
insolvency of the principal debtor ; and if there are other sure- 
ties who are able to contribute, then only so much as the 
surety in whose behalf the statement is made will be bound to 
Proviso. contribute : Provided, that nothing in this section shall be 

so construed as to apply to any bank, company or corporation 



DIV. VII.] BANKS, BROKERS AND STOCK-JOBBERS. 219 

exercising banking powers or privileges, or to authorize any 
deductions alloweaby this section from the value of any other 
item of taxation than credits. 

Sec. 28. No person, company or corporation shall be entitled Deductions, 
to any deduction from the amount of any bond, stocks or money 
loaned. ; or on account of any bond, note or obligation of any 
kind, given to any insurance company, on account of premiums 
or policies, nor on account of any unpaid subscription to any 
religious, literary, scientific or charitable institution or society, 
nor on account of any subscription to or installment payable 
on the capital stock of any company, whether incorporated or 
unincorporated. 

Sec. 29. In all cases where deductions are claimed from Deductions to 
credits, the assessor shall require that such deductions be veri- oath ertlfied by 
tied by the oath of the person, officer or agent claiming the 
same, and any such person, officer or agent, knowingly or 
willfully making a fraudulent statement of such deductions 
claimed, so verified by affidavit, shall be liable to a fine of not 
less than one hundred dollars, nor more than one thousand 
dollars, in addition to all damages sustained by the State, 
county, or other local corporations, to be recovered in any 
proper form of action in any court of competent jurisdiction, 
in the name of the People of the State of Illinois. Such fines, 
when recovered, shall be paid into the country treasury, and 
the damages, when collected, shall be paid to whom they 
belong. The assessor shall preserve the statement of deduc- leduSns^ 
tions thus claimed, so verified by affidavit, and when he returns preserved, 
the assessment books, shall file the same with the county clerk, 
to be kept on file in his office for two years, and at the expi- 
ration of such time, said statement of deductions shall be 
destroyed by said clerk ; but in the meantime shall be subject 
only to the inspection of the officers charged with the execution 
of this law. 

RULES FOR LISTING AND VALUING THE PROPERTY AND BUSI- 
NESS OF BANKS, BANKERS, BROKERS AND STOCK-JOBBERS. 

Sec. 30. Every bank (other than a national bank), banker, property of 
broker or stock-jobber, shall, at the time fixed by this act of banks, bankers, 
listing personal property, make out and furnish the assessor a 
sworn statement, showing : 

First — The amount of money on hand or in transit. 

Second — The amount of funds in the hands of other banks, 
bankers, brokers, or others, subject to draft. 

Third — The amount of checks, or other cash items, the 



220 REVENUE. [DIV. VII. 

amount thereof not being included in either of the preceding 
items. 

Fourth — The amount of bills receivable, discounted or 
purchased, and other credits due or to become due, including 
accounts receivable, and interest accrued but not due, and in- 
terest due and unpaid. . 

Fifth — The amount of bonds and stocks of every kind, 
and shares of capital stock of joint stock or other companies 
or corporations, held as an investment, or any way represent- 
ing assets. 

Sixth — All other property appertaining to said business, 
other than real estate (which real estate shall be listed and as- 
sessed as other real estate is listed and assessed under this act.) 

Seventh — The amount of all deposits made with them by 
other parties. 

Mghth — The amount of all accounts payable, other than 
current deposit accounts. 

Ninth — The amount of bonds or other securities exempt 
by law from taxation, specifying the amount and kind of each, 
the same being included in the preceding fifth item. 

The aggregate amount of the first, second and third items 
of said statement shall be listed as moneys. The amount of 
the sixth item shall be listed the same as other similar personal 
property is listed under this act. The aggregate amount of 
the seventh and eighth items shall be deducted from the aggre- 
gate amount of the fourth item of said statement, and the 
amount of the remainder, if any, shall be listed as credits. 
The aggregate amount of the ninth item shall be deducted 
from the aggregate amount of the fifth item of such statement, 
and the remainder shall be listed as bonds or stocks. 

PAWN -BROKER. 

Pawnbroker— Sec. 31. Every person or company engaged in the business 
of his returns. f receiving property in pledge or as security for money or 
other thing advanced to the pawner or pledger, shall be held 
to be a pawnbroker, and shall, at the time required by this act, 
return, under oath, the value of all property pledged and held by 
him, as a pawn - broker, on hand on the first day of May, annu- 
ally, and taxes shall be charged upon the fair cash value of such 
property, to such pawn - broker, the same as other property. 

LISTING CAPITAL STOCK OP CORPORATIONS AND FRANCHISES 
OF PERSONS. 

Listing the Sec. 32. Banking, bridge, express, ferry, gravel road, gas, 

c??pOTatioM.° f insurance, manufacturing, mining, plank road, savings bank, 



PIV. VII.] STATE AND NATIONAL BANKS. 221 

Btage, steam boat, street railroad, transportation, turnpike, and 
all other companies and associations incorporated ui\der the 
laws of this State (other than banks organized under the general 
banking laws of this State), shall, in addition to the other prop- 
erty required by this act to be listed, make out and deliver to the 
sor a sworn statement of the amount of its capital stock, 
setting forth particularly : 

First — The name and location of the company or association. 

Second — The amount of capital stock authorized, and the 
number of shares into which such capital stock is divided. 

Third — The amount of capital stock paid up. 

Fourth — The market value, or if no market value, then the 
actual value of the shares of stock. 

Fifth — The total amount of all indebtedness except the 
indebtedness for current expenses — excluding from such ex- 
penses the amount paid for the purchase or improvement of 
property. 

Sixth — The assessed valuation of all its tangible property. such schedule 

Such schedule shall be made in conformity to such instruc- ^f^s Suctions 
tion and forms as may be prescribed by the auditor of public of the auditor 
accounts. In all cases of failure or refusal of any person, counts, 
officer, company or association to make such return or state- 
ment, it shall be the duty of the assessor to make such return 
or statement from the best information which he can obtain. 

Sec. 33. Such statements shall be scheduled by the assessor , statements to 
and such schedule, with the statements so scheduled, shall be ^ theSsessor 
returned by the assessor to the county clerk. Said clerk shall, 
at the time he makes his report of assessment, forward to the 
auditor all such schedules and statements so returned to him. 
The auditor shall, annually, on the meeting of the State board 
of equalization, lay bafore said board the schedules and state- 
ments herein required to be returned to him ; and said board 
shall value and assess the capital stock of such companies or 
associations, in the manner provided in this act. 

Sec. 34. Every person owning or using; a franchise granted Franchises to 

, , r» ii • c« i -n • -it- i • -i be listed as per- 

by any law ot this btate, shall, in addition to his other prop-sonai property. 

erty, list the same as personal property, giving the total value 

thereof. 

STATE AND NATIONAL BANKS. (1) 

Sec. 35. The stockholders in every bank located w T ithin this state and na- 
State, whether such bank has been organized under the bank- tional banks - 

CD A state tax against a shareholder of a national bank, for any year, under the law 
then in force, and "voluntarily paid, cannot be recovered back, because the assess- 
ment undtr the law, was illegal ; the property being subject, in some mode, to taxa- 



999 



REVENUE. [DIV. VII. 



ing laws of this State or of the United States, shall be assessed 
and taxed on the value of their shares of stocks therein, in the 
county, town, district, village or city where such bank or bank- 
ing association is located, and not elsewhere, whether such 
stockholders reside in such place or not. Such shares shall be 
listed and assessed with regard to the ownership and value 
thereof, as they existed on the first day of May, annually, sub- 
ject, however, to the restriction that taxation of such share 
shall not be at a greater rate than is assessed upon any other 
moneyed capital in the hands of individual citizens of this 
State, in the county, town, district, village or city where such 
bank is located. The shares of capital stock of national banks 
not located in this State, held in this State, shall not be 
required to be listed under the provisions of this act. 
List of stock- Sec. 36. In each such bank there shall be kept at all times 
holders. a f u ]^ an( j correc t list of the names and residences of its stock- 

holders, and of the number of shares held by each ; which list 
shall be subject to the inspection of the officers authorized to 
assess property for taxation ; and it shall be the duty of the 
assessor to ascertain and report to the county clerk a correct 
list of the names and residences of all stockholders in any such 
bank, with the number and assessed value of all such shares 
held by each stockholder. 
County clerk Sec. 37. The county clerk, to whom such returns are made, 
xiationof erval " sna ^ en ter the valuation of such shares in the tax lists, in the 
shares. names of the respective owners of the same, and shall compute 

and extend taxes thereon the same as against the .valuation of 
other property in the same locality. 
Tax on shares f Sec. 38. The collector of taxes, and the officer or officers 
authorized to receive taxes from the collector, may, all or either 
of them, have an action to collect the tax assessed on any share 
or shares of bank stock from the avails of the sale of such share 
or shares ; and the tax against such share or shares shall be 
and remain a lien thereon till the payment of said- tax. 



shall be a lien. 



tion. People ex rel. v. Miner, 46 111. R., 374 ; Van Allen v. The Assessors, 3 Wallace, 573 ; 
Bradley v. State of Illinois, 4 Wallace, R., 457. 

Whether the shares oi' national bank stock are listed for taxation by the individ- 
ual owners, or the capital stock is listed by the bank, a similar valuation and a like 
burden are imposed, and in whichever mode the assessment is made, there is no 
wrong perpetrated and no injustice done. Board of Supeivisors of Stephenson Co. v. 
Manny, 54 111., 160. 

In submitting a plan for banking to the people, it was not intended to release any 
legislative power necessary for revenue purposes. Bank of Repiiblie v. County of 
MaiAittoti, 21 111. R., 54. 

The assessors will ascertain the ownership, number and value of all such shares 
in the stock of banks located in their respective counties and towns, and return the 
same as required by this act, being governed by all the rules of valuation and regu- 
lations in other respects provided by law as to the assessment of other property not 
made inapplicable by the terms of this act, and the clerks will extend taxes thereon, 
and collectors will make collections in accordance with the general revenue laws 
and the provisions of this act. Circular Auditor Miner, July 1, 1867. 



DIV. VII.] LISTING PROPERTY OF RAILROADS. 223 

SEC. 39. For the purpose of collecting such taxes, it shall officers may 
be the duty of every such bank, or the managing officer or offi- JJJjjSon 1 " 
cers thereof, to retain so much of any dividend or dividends ^J aros t0 pay 
belonging to such stockholders as shall be necessary to pay 
any taxes levied upon their shares of stock, respectively, until 
it shall be made to appear to such bank or its officers that 
such taxes have been paid ; and any officer of any such bank 
who shall pay over or authorize the paying over of any such 
dividend or dividends, or any portion thereof, contrary to the 
provisions of this section, shall thereby become liable for such 
tax ; and if the said tax shall not be paid, the collector of 
taxes where said bank is located shall sell said share or shares 
to pay the same, like other personal property. And in case 
of sale the provision of law in regard to the transfer of stock 
when sold on execution, shall apply to such sale. 

MANNER OF LISTING AND VALUING THE PROPERTY OF 
RAILROADS. 

Sec. 40. Every person, company or corporation owning, Railroad prop- 
operating or constructing a railroad in this State, shall return ued^d^Isted] 
sworn lists or schedules of the taxable property of such rail- 
road, as hereinafter provided. Such property shall be listed 
and assessed with reference to the amount, kind and value on 
the first day of May of the year in which it is listed. (1) 

Sec. 41. They shall, in the month of May of the year schedule of 
eighteen hundred, and seventy -three, and at the. same time in^jy^g^ p * 
each year thereafter when required, make out and file with the made. 
county clerks of the respective counties in which the railroad 
may be located, a statement or schedule showing the property 
held for right of way, and the length of the main, and all side 
and second tracks and turnouts in such county, and in each 
city, town and village in the county, through or into which 
the road may run, and describing each tract of land other 
than a city, town or village lot, through which the road may 
run, in accordance with the United States surveys, giving the 

(1) The road over which a company occasionally runs its trains under a mere ease- 
ment or a license is not any P ar t of 'its main track, so as to subject it to assessment 
for taxation iu that county, and where a county illegally assesses and collects a tax 
upon rolling stock of a railroad company, it not being taxable in such county by 
reason of the company only using another road therein under a mere easement, 
the company may bring its action against the county and recover the money back. 
Coo': County y. C. B. and Q. R. 11. Co., 35 111. K., 640. 

Jt is the opinion that every railroad company is entitled to notice, of any 
change by the county authorities in the listing or valuation of property by them 
rendered, and opportunity to offer objection. It is not considered that a change in 
the valuation returned by a company or individual would be binding without such 
notice. Opinion Auditor Miner, March 3, I860. If proper notice is not given the 
party aggrieved may have remedy in the circuit court. City of Ottawa v. Chicago & 
R.I.R.R. Co., 25 111. K., 43. 

15 



224 



REVENUE. 



[DIV. VII. 



New compa-] 
nies. 



Right of way, 
held to be real 
estate for the 
purposes of 
taxation, and 
denominated 
"railroad 
track." 



" Railroad 
track," how 
listed and 
taxed. 



'Rolling stock' 



width and length of the strip of land held in each tract, and 
the number of acres thereof. They shall also state the value 
of improvements and stations located on the right of way. 
New companies shall make such statement in May next after 
the location of their roads. When such statement shall have 
been once made, it shall not be necessary to report the descrip- 
tion as hereinbefore required, unless directed so to do by the 
county board ; but the company shall during the month of 
May, annually, report the value of such property, by the 
description set forth in the next section of this act, and note 
all additions or changes in such right of way, as shall have 
occurred. 

Sec. 42. Such right of way, including the superstructures 
of main, side or second track and turnouts, and the stations 
and improvements of the railroad company on such right of 
way, shall be held to be real estate for the purposes of taxa- 
tion, and denominated "railroad track," and shall be so listed 
and valued ; and shall be described in the assessment thereof 
as a strip of land extending on each side of such railroad 
track, and embracing the same, together with all the stations 
and improvements thereon, commencing at a point where such 
railroad track crosses the boundary line in entering the 
county, city, town or village, and extending to the point where 
such track crosses the boundary line leaving such county, city, 
town or village, or to the point of termination in the same, as 
the case may be, containing acres, more or less (insert- 
ing name of county, township, city, town or village boundary 
line of same, and number of acres, and length in feet), and 
when advertised or sold for taxes, no other description shall 
be necessary. 

Sec. 43. The value of the "railroad track," shall be listed 
and taxed in the several counties, towns, villages, districts and 
cities, in the proportion that the length of the main track in 
such county, town, village, district or city bears to the whole 
length of the road in this State, except the value of the side 
or second track, and all turnouts, and all station houses, 
depots, machine shops, or other buildings belonging to the 
road, which shall be taxed in the county, town, village, dis- 
trict or city in which the same are located. ■ 

Sec. 44. The movable property belonging to a railroad 
company shall be held to be personal property, and denomi- 
nated, for the purpose of taxation, "rolling stock." Every 
person, company or corporation, owning, constructing or 
operating a railroad in this State, shall, in the month of May, 
annually, return a list or schedule, which shall contain a cor- 



DIV. VII.] LISTING PROPERTY OF RAILROADS. 225 

rcct detailed inventory of all the rolling stock belonging to 
such company, and which shall distinctly set forth the number 
of Locomotives of all classes, passenger cars of all classes, 
sleeping and dining cars, express cars, baggage cars, house 
cars, cattle cars, coal cars, platform cars, wrecking cars, pay 
cars, hand cars, and all other kinds of cars. 

Sec. 45. The rolling stock shall be listed and taxed in the Roiling stock, 
several counties, towns, villages, districts and cities, in the pro- where taxe(i 
portion that the length of the main track, used or operated in 
such county, town, village, district or city, bears to the whole 
length of the road used or operated by such person, company 
or corporation, whether owned or leased by him or them, in 
whole or in part. Said list or schedule shall set forth the 
number of miles of main track on which said rolling stock is 
used in the State of Illinois, and the number of miles of main 
track on which said rolling stock is used elsewhere. 

Sec. 46. The tools and materials for repairs, and all other Tools ana 
personal property of any railroad, except "rolling stock," matenals - 
shall be listed and assessed in the county, town, village, dis- 
trict or city, wherever the same may be on the first day of 
May. All real estate, including the stations and other build- 
ings and structures thereon, other than that denominated 
"railroad track," belonging to any railroad, shall be listed as 
lands or lots, as the case may be, in the county, town, village, 
district or city where the same are located. 

Sec. 47. The county clerk shall return to the assessor of Real estate. 
the town or district, as the case may require, a copy of the rSd Srac?." 
schedule or list of the real estate (other than " railroad and persona, 
track,") and of the personal property ("except rolling stock,") except "roiling 
pertaining to the railroad ; and such real and personal prop- st0CK ' 
erty shall be assessed by the assessor. Such property shall 
be treated in all respects, in regard to assessment and equaliz- 
ation, the same as other similar property belonging to indi- 
viduals ; except that it shall be treated as property belonging 
to railroads, under the terms "lands," "lots" and "personal 
property." 

Sec. 48. At the same time that the lists or schedules are sworn state- 
hereinbefore required to be returned to the county clerks, the 5Ja3e S to be 
person, company or corporation, running, operating or con- auditor. 
structing any railroad in this State, shall return to the auditor 
of public accounts, sworn statements or schedules, as follows : 

First — Of the property denominated "railroad track," giv- « Railroad 
ing the length of the main and side or second tracks and track -" 
turnouts, and showing the proportions in each county, and the 
total in the State. 



226 



REVENUE. [DIY. VII. 



"Roiling Second — The "rolling stock," giving the length of the 

stock - main track in each county, the total in this State, and the 

entire length of the road. 
Number of ties Third — Showing the number of ties in track per mile, the 

per mile, etc. . , , c . , ° , , , . . ,™ ' , 

weight ot iron or steel per yard, used m mam and side tracks ; 
what joints or chairs are used in track, the ballasting of road, 
whether graveled or dirt, the number and quality of buildings 
or other structures on "railroad track," the length of time 
iron in track has been used, and the length of time the road 
has been built. 
Aisoasched- Fourth — A statement or schedule showing: 
Amount of 1. The amount of capital stock authorized and the number 

authorized! rtc. °f shares into which such capital stock is divided. 
2. The amount of capital stock paid up. 
; 3. The market value, or if no market value, then the actual 
value of the shares of stock. 

4. The total amount of all indebtedness, except for current 
expenses for operating the road. 

5. The total listed valuation of all its tangible property in 
this State. 

Such schedule shall be made in conformity to such instruc- 
tions and forms as may be prescribed by the auditor of public 
accounts. 
Conforming to Sec. 49. If any person, company or corporation, owning, 
tionsof'the operating or constructing any railroad, shall neglect to return 
auditor. to the county clerks the statements or schedules required to 

be returned to them, the property so to be returned, and 
assessed by the assessor, shall be listed and assessed as other 
mlike^eturn to property. In case of failure to make returns to the auditor, 
auditor. as hereinbefore provided, the auditor, with the assistance of 

the county clerks and assessors, when he shall require such 
assistance, shall ascertain the necessary facts and lay the same 
before the State board of equalization. In case of failure to 
make said statements, either to the county clerk or auditor, 
Penalty. such corporation, company or person shall forfeit, as a penalty, 

not less than one thousand nor more than ten thousand dollars 
for each offense, to be recovered in any proper form of action, 
in the name of the People of the State of Illinois, and paid 
into the State treasury. 
Aiiditor shall Sec. 50. The auditor shall annually, on the meeting of the 
b a efore h st d ate es State board of equalization, lay before said board the state- 
board of equal- ments anc [ schedules herein required to be returned to him, 

ization. - 1 . . 

and said board shall assess such property in the manner here- 
inafter provided. 

Sec. 51. The county clerk shall procure, at the expense of 



DIV. 



VII.] TELEGRAPH COMPANIES. 227 



the county, a record book, properly ruled and headed, in which Record book 

to enter the railroad property of all kinds, as listed for tax- JjJ»J5rty > . ad 

ation, and shall enter the valuations as assessed, corrected and 

equalized, in the manner provided by this act ; and against 

such assessed, corrected or equalized valuation, as the case 

may require, the county clerk shall extend all the taxes 

thereon, for which said property is liable ; and at the proper 

time fixed by this act for delivering tax books to the county 

collector, the clerk shall attach a warrant, under his seal of 

office, and deliver said book to the county collector, upon 

■which the said county collector is hereby required to collect 

the taxes therein charged against railroad property, and pay 

over and account for the same in the manner provided in other 

cases. Said book shall be returned by the collector and be 

filed in the office of the county clerk for future use. 

Sec. 52. When any railroad company shall make or record Railroad plats, 
a plat of any contiguous lots or pareels of land belonging to it, nated desig 
the same may be described as designated on such plat. 

TELEGRAPH COMPANIES — RETURN. 

Sec. 53. Any person, company or corporation using or Telegraph 
operating a telegraph line in this State, shall, annually, in the their returns, 
month of May, return to the auditor of public accounts a 
schedule or statement, as follows : 

First — The amount of capital stock authorized and the Amount capital 
number of shares into which such capital stock is divided. stock - 

Second — The amount of capital stock paid up. Amount paid 

- Third — The market value, or if no market value, then theM P arketva i ue 
actual value of the shares of stock. of - 

Fourth — The total amount of all indebtedness, except cur- Total indebted- 
rent expenses, for operating the line. ness - 

Fifth — The length of line operated in each county, and Length of line. 
the total in the State. 

Sixth — The total assessed valuation of all its tangible prop- Assessed vaiua- 

,i. a, , oil. tion in this 

erty in this State, state. 

Such schedule shall be made in conformity to such instruc- schedule must 
tions and forms as may be prescribed by the auditor of public formnyVo C ° n " 
accounts, and with reference to amounts and values on the JSSractfons 
first day of May of the year for which the return is made. 

Sec. 54. The auditor shall annually, on the meeting of the Auditor shall 
State board of equalization, lay before said board the statement befo? e S sta e te Ule 
or schedule herein required to be returned to him ; and said {5£J5j n of e( i ual * 
board shall assess the capital stock of such telegraph company, 
in the manner hereinafter provided. The tax charged on the 



228 



REVENUE. 



[DIY. VII. 



capital stock of telegraph companies shall be placed in the 
hands of county collectors, in a book provided for that purpose, 
the same as is required for railroad property, and may be 
included in the same book with railroad property. 
:0 p- Sec. 55. The office furniture and other personal property 



graphVompa- 0I> telegraph companies shall be listed and assessed in the 
s, where county, town, district, village or city where the same is used 
or kept. 



taxed. 



PENALTY. 



Penalty for 
refusing to 
return as 
requ red. 



How collected 



For making 
false return. 



Sec. 56. If any person or corporation shall give a false or 
fraudulent list, schedule or statement, required by this act, or 
shall fail or refuse to deliver to the assessor, when called on 
for that purpose, a list of the taxable personal property which 
he is required to list under this act, he or it shall be liable to 
a penalty of not less than ten dollars nor more than two thou- 
sand, to be recovered in any proper form of action, in the 
name of the People of the State of Illinois, on the complaint 
of any person. Such fine, when collected, to be paid into the 
county treasury. 

Sec. 57. Whoever shall willfully make a false list, schedule 
or statement, under oath, shall, in addition to the penalty pro- 
vided in the preceding section, be liable as in the case of 
perjury. 



REAL PROPERTY 



AS OF WHAT TIME LISTED WHO LIABLE 

EOR TAX. 



Real estate, as 
of what time 
listed — who 
liable for tax. 



Proviso. 



Purchaser on 
1st May consid 
ered owner on 
that day. 



Exempt real 
estate, where 
leased. 



Sec. 58. All real property in this State, subject to taxation 
under this act, including real estate becoming taxable for the 
first time, shall be listed to the owners thereof, by such owners, 
their agents, county clerks or assessors, or the county board, 
and assessed for the year one thousand eight hundred and 
seventy -three, and yearly thereafter, with reference to the 
amount owned on the first day of May in each year, including 
all property purchased on that day : Provided, that no assess- 
ment of real property shall be considered as illegal by reason 
of the same not being listed or assessed in the name of the 
owner or owners thereof. 

Sec. 59. The owner of property on the first day of May in 
any year, shall be liable for the taxes of that year. The pur- 
chaser of property on the first day of May shall be considered 
as the owner on that day. 

Sec. 60. "When real estate, which is exempt from taxation, 
is leased to another whose property is not exempt, and the 



DIV. VII.] LIABILITY FOR TAX. 229 

leasing of which does not make the real estate taxable, the 
leasehold estate anil the appurtenances shall be listed as the 
property of the lessee thereof, or his assignee, as real estate. 

Sec. 61. Government lands entered or located on or prior Government 
to the first day of May, shall be taxable for that year and an 
annually thereafter. School lands and lots sold shall be tax- 
able in like manner as government lands. Lands and lots 
sold by the trustees of the Illinois and Michigan canal shall be 
taxable from and after the time the full payment therefor is 
made. Illinois Central railroad lands and lots shall be tax- 
able from and after the time the last payment becomes due. 
Swamp lands and lots shall become taxable whenever the Swamp lands, 
county sells, conveys, or agrees to convey its title : Provided, proviso con- 
that canal, Illinois Central railroad and swamp lands and lots i^ c n R g iTand 
shall be in other respects governed, as to the time of becoming swamp lands, 
taxable, the same as government lands. 

Sec. 62. In all cases where any tract or lot of land is divided— to be 
divided in parcels so that it cannot be described without surveyed - 
describing it by metes and bounds it shall be the duty of the 
owner to cause such land to be surveyed and platted into lots. 
Such plats shall be certified and recorded. The description 
of real estate in accordance with the number and description 
set forth in the plat, aforesaid, shall be deemed a good and 
valid description of the lot or parcel of land so described. (1) 

Sec. 63. If the owner of any such tract or lot shall refuse If owner 
or neglect to cause such survey to be made within thirty days g^'enseo'/sur- 

after being notified by the county clerk, said clerk shall cause vey shall be 
° J _ i _ added to tax. 

CH Where'the name of the patentee or present owner is not returned by the assessor 
it will be presumed he was unknown to him. Jackson v. Cummings, 15 111. R., 452, 
2.Gilman K., 450. 

The term "tract" or " parcel" of land in the law does not necessarily refer to the 
smaller subdivision of the government survey, as 40's. A farm (or tract of land) of 
contiguous territory, owned and occupied by "the same person, would seem to be a 
separate tract of real property, and such is the construction which the law places 
upon it. Atkins v. Hi n man, 2 Gilm., 111. K., 443: SpeUman v. Curtenius, 12 111. R., 410; 
Morley v. Naylor, 6 Minn. R., 192. The ^ord " lot," as used in the law, must be 
taken to mean town or city Jots, as laid out, platted, numbered and recorded. 6 
Minn. R., 203. And a sale of a number of such lots in a body, or the assessment of a 
number as one tract, although lying contiguous would be void. The reason of the 
distinction between the two cases is obvious. In the first, any number of government 
subdivisions, lying together and owned by the same person, constitute one tract;, 
within the meaning or the law. This the law allows; but in case of town lots, each. 
lot must be listed separately. Washington v. Pratt, 8 Wheat. R., 681 ; Urnnin v Inman, 
26 Maine R., 228; Wiley v. Lorilles Lessees, 9 Ohio R., 43. The word ' tract" may also 
refer to such lands within the limits of any town as are not divided into lots. Opin- 
ion Attorney General (Minn.), vol. 1. p. 309. 

The assessment of a tax upon a " part .of a lot " or " one acre of a lot," without 
quantity or location in the one case, or without location in the other, is too vague 
and indefinite to authorize a sale of any part or in any place. Massie v. Long, 2 Ohio 
R., 287. 

A certain and definite description of each parcel of land or lot should be given. 
It is necessary to the validity of a tax sale that the land should appear upon the 
duplicate by a pertinent description, and in the name of the rightful owner, if 
known. If not known, however, the land is still taxed, being entered to an 
unknown owner. The tax attaches upon the land, rather than upon the person ; 
not upon the number of entry or survey, but upon the land included in such entry 
or survey. Douglas v. Dangerfield, 14 Ohio R., 522 ; Massie v. Long, 2 Ohio R., 287. 



230 



REVENUE. 



[DIV. VII. 



How listed 
between coun- 
ties. 



How between 
towns. 




Proviso where 
land is situated 
m more than 
one town. 



Book for the 
•assessment — 
how made up. 



such survey to be made and recorded, and the expense thereof 
shall be added to the tax levied on such real property, and 
when collected, shall be paid on demand, to the persons to 
whom it is due. 

Sec. 64. Any tract of land not exceeding one-sixteenth of 
a section, shall be listed in the county where the greater part 
thereof is situated. When any such tract of land shall be 
situated equally in two counties, the auditor shall determine in 
which county it shall be listed. If there be several tracts 
similarly situated, the auditor shall apportion them equally 
between the counties as nearly as practicable. County clerks 
may have the actual contents of such tracts lying in their 
respective counties surveyed, platted and recorded, in the 
manner provided for in other cases. 

Sec. 65. The foregoing rules shall apply to lands lying in 
different towns : Provided, the county clerk shall act in said 
cases, instead of the auditor. 

Sec. 66. The county clerk shall make up for the several 
towns or districts in his county, in books to be provided for 
that purpose, the lists of lands and lots to be assessed for 
taxes. When a whole section, half section, quarter section, or 
half quarter section belongs to one owner, it shall, at the request 
of the owner or his agent, be listed as one tract, and when all 
lots in the same block belong to one owner, they shall, at the 
request of the owner or his agent, be listed as a block. When 
several adjoining lots in the same block belong to the same 
owner, they shall, at the request of the owner or his agent, be 
included in one description : Provided, that when any tract or 
parcel of real estate is situated in more than one town, 
or in more than one school, road or other district, the portion 
thereof in each town or district shall be listed separately. 
Said clerk shall enter in the proper column, opposite the 
Tespective tracts or lots, the names of the owners thereof, so 
far as he shall be able to ascertain the same. Said books shall 
contain columns in which may be shown the number of acres 
or lots improved, and the value thereof; the number of acres 
of lots not improved, and the value thereof; the total value, 
and such other columns as may be required. 

Sec. 67. The books for the assessment of property in coun- 
ties not under township organization, shall be made up by 
congressional townships — but parts or fractional townships, 
less than full townships, may be added to full townships, at 
the discretion of the county board. In counties under town- 
ship organization, said books shall be made to correspond with 
the organized townships. Separate books shall be made for 



DTV. VII.] APPOINTMENT OF ASSESSORS. 231 

the assessment of property and the collection of all taxes and 
special assessments thereon, within the corporate limits of 
cities, towns and villages, if ordered by the county board. 

Sec. 68, The county clerk shall cause such lists to be care- such list to be 
fullv compared with the list of taxable real property on file in ™™ TtSabie h 

his Office. property. 

Sec. 69. The county clerk shall cause such assessment Books to be 
books, and all blanks necessary to be used by the assessor in Maoist* 1 by 
the assessment of real and personal property, to be in readi- 
ness for delivery to the assessor on or before the first day of 
May in each year. 

Sec. 70. It shall be the duty of each county, town or dis- Assessor to . 
trict assessor to call on the county clerk on or before the first n C r V before kS 
day of May in each year, and receive the necessary books and Ma y lst - 
blanks for the assessment of property, and the failure of any 
assessor so to dp shall be deemed sufficient cause to declare his 
office vacant, and for the appointment of a successor. 

Sec. 71. If, after the delivery of such books to the assessor Lands not C o n - 
in any year, the clerk shall receive an abstract showing the gjj^ in said 
entry of any lands or lots not contained in such books, it shall 
be his duty to furnish a list of the same to the proper assessor 
within five days after such abstract is received. 

APPOINTMENT OF ASSESSORS AND DEPUTY ASSESSORS. 

Sec. 72. Until provision is made by law for the election of Appointment 
the county assessor in counties not under township organiza- Jiputy wSS d 
tions, the county board in said counties shall annually appoint ors. 
some suitable and competent person as county assessor, and 
the person so appointed shall hold his office for one year, sub- 
ject, however, to all the fines, penalties, and removal from 
office, provided for in this act. A vacancy from any cause, in 
the office of assessor, shall be filled by appointment by said 
board. 

Sec 73. If any assessor, for any cause whatever, shall be Assessor may 
unable to perform the duties required of him within the time t^-^ow.^" 
designated by law, he may, by and with the advice and consent 
of the chairman of the county board, or board of town auditors, 
as the case may require, appoint one or more suitable persons 
to act as deputies to assist him in making the assessment, ancj. 
may designate the district, or portion of the township, county, 
city, village or town in which such deputy or deputies are 
authorized to list and assess property. Such deputy assessors 
shall make their returns to the assessor. 



232 REVENUE. [DIV. VII. 

GATH AND DUTIES OF ASSESSORS — ASSESSMENT OE REAL AND 
PERSONAL PROPERTY. 

Oath of Sec. 74. Every assessor or deputy assessor, before entering 

upon the duties of his office, shall take and subscribe the oath 

required by the constitution. 

Vacancy— Sec. 75. If any assessor shall fail to take the oath required 

how niied. -j^ ^-g ac ^ kj s fg ce s ti a n become vacant ; and in such case, 

or in case the office of assessor is vacant for any cause, the 
county board, or town board, as the case may be, shall fill the 
vacancy by the appointment of some suitable person, . who 
shall qualify and discharge the duties of such assessor till the 
office is otherwise filled as required by law. 
Assessors must Sec. 76. Assessors shall, between the first day of May and 
view property. ^ g rgt ^ Q f j^j f g^ y eal ^ actually view and deter- 
mine, as nearly as practicable, the fair cash .value of each 
* tract or lot of land Msted for taxation, and set down in proper 
columns in the book furnished him the value of each tract or 
lot improved, the value of each tract or tot not improved, and 
the total value. He shall also set down in separate columns 
the number of acres in wheat, corn, oats, meadow, and other 
field products, in inclosed pasture, orchards and woodlands, 
whether inclosed or not, in that year. 
Must list and Sec. 77. If the assessor discovers any real property, sub- 
noTreSmed. 7 ject to taxation, which has not been returned to him by the 

clerk, he shall list and assess such property. 
Manner of Sec. 78. The assessor or his deputy, shall also, between 

the first day of May and July, proceed to take a list of the 
taxable personal property in his county, town or district, and 
assess the value thereof in the manner following, to wit : He 
shall call at the office, place of doing business or residence of 
each person required by this act to list property, and list his 
name, and shall require such person to make a correct state- 
ment of his taxable property in accordance with the provisions 
of this act ; and the person listing the property shall enter a 
true and correct statement of such property, in the form pre- 
scribed by this act, w T hich shall be signed and sworn to, to the 
extent required by this act, by the person listing the property, 
and delivered to the assessor; and the assessor shall thereupon 
assess the value of such property, and enter the same in his 
Proviso as to books : Provided, if any property is listed or assessed on or 
property listed a ft er the jirst day of July, and before the return of the asses- 
sor's books, the same shall be as legal and binding as if listed 
and assessed before that time. ' 

Sec. 79. If any person required by this act to list property 



DIV. VII.] REVIEW BY TOWN BOARD. 233 

shall 1)0 sick or absent when the assessor calls for a list of his Assessor may 

property, the assessor shall leave at the office, or usual place J v e J^ notlce— 

of residence or business of such person, a written or printed 

notice requiring such person to make out and leave at the 

place named by said assessor, on or before some convenient 

day named therein, the statement or schedule required by this 

act. The date of leaving such notice, and the name of the 

person required to list the property, shall be carefully noted 

by the assessor in a book to be kept for that purpose. 

Sec. 80. The assessor may examine, on oath, any person May examine 
whom he may suppose to have knowledge of the amount or underoath - 
value of the personal property which the person so refusing is 
required to list. The assessor may take any proper form of 
action to compel the attendance of a witness. 

Sec. 81. It shall be the duty of assessors, when making shall designate 
assessments of personal property, to designate the number of JJ| ^hooidi?^ 
school district or districts in which each person assessed is lia- trick 
ble for tax ; which designation shall be made by writing the 
number of the district opposite each assessment, in a column 
provided for that purpose in the assessment book. 

Sec. 82. When the personal property of any person is property in 
assessable in several school districts, the amount in each shall d1sScts SCh ° o1 
be assessed separately, and the name of the owner placed assessed sepa- 
opposite each amount. 

Sec. 83. In all cases of failure to obtain a statement of Faiinreto 
personal property, from any cause, it shall be the duty of the 2SJ n state 
assessor to ascertain the amount and value of such property, 
and assess the same as he believes to be the fair amount and 
value thereof. 

Sec. 84. The assessor, when requested, shall deliver to the Assessor to 
person assessed a copy of the statement of property hereinbe- ^f statement, 
fore required, showing the valuations of the assessor of the 
property so listed ; which copy shall be signed by the assessor. 

Sec. 85. Assessors, in the execution of their duties, shall f^VftJ. 
use the forms and pursue the instructions which shall from nis k. ed °y 
time to time, be transmitted to them by the auditor, or that 
may be furnished to them by the county clerk or other officer, 
in pursuance of law. 

REVEIW OF ASSESSMENT BY TOWN BOARD IN COUNTIES UNDER 
TOWNSHIP ORGANIZATION. 

Sec. 86. In counties under township organization, the Review of 
assessor, clerk and supervisor of the town, shall meet on the 
fourth Monday of June, for the purpose of reviewing the 



234 REVENUE. [DIV. VII. 

assessment of property in such town. And, on the applica- 
tion of any person considering himself aggrieved, or who shall 
complain that the property of another is assessed too low, they 
shall review the assessment, and correct the same, as shall 
appear to them just. No complaint that another is assessed 
too low shall be acted upon until the person so assessed, or 
his agent, shall be notified of such complaint, if a resident of 
the county. Any two of said officers meeting, are authorized f 
to act, and they may adjourn from day to day, till they shall 
have finished the hearing of all cases presented on said day. 
Property assessed after the fourth Monday of June shall be 
subject to complaint to the county board, subject to the rules 
specified in this section. (1) 
Ten days notice Sec. 87. The assessor shall cause at least ten days previous 
of review. notice of the time and place of such meeting, to be given by 

posting notices in at least three public places in such town. 
Failure to give Sec. 88. The failure to give such notice or hold such meet- 
ing shall not vitiate such assessment, except as to the excess 
of valuation or tax thereon shown to be unjustly made or 
levied. 

RETURN OF ASSESSOR TO COUNTY CLERK. 

Assessors Sec. 89. The assessor shall add up and note the aggregate 

county cierk °^ eSLG ^ i C0Uimn ^ n n * s assessment books of real and personal 
property ; and shall also add in each book, under proper head- 
ings, a tabular statement, showing the footings of the several 
columns upon each page ; and shall add up and set down 
under the respective headings the totals of the several col- 
umns. When an assessor returns several assessment books of 
real or personal property, he shall, in addition to the tabular 
statements herein required, return a statement in like form, 
shoeing the totals of all the books. 
Mode of verify- Sec. 90. The assessor shall, on or before the first day of 
mg return. j^j f the year for which the assessment is made, return his 

(1) The provision requiring the assessor, toirn cleric and supervisor to 

attend at the time and place specified in the notice, for the purpose of reviewing the 
assessment is imperative ; and without such meeting no taxpayer can be bound by 
the assessment. When one party proved that the tow r n clerk was not present at 
such meeting, held to throw on the other party the burden of proving that the other 
two complied with the law if it is conceded that two had the power to act. The 
owner of the land, on trial of a tax title, has the right to raise objections of this 
character. Hough v. Hastings, 18 111. R., 312. 

Where the assessor and town elerh met, and duly organized (he board for the 
purpose of reviewing the assessments, and no person appeared before them to 
object, held to be valid. The law expressly authorizes a majority of the board to act. 
And even if a person would have the right to appear before them and object to final 
action without, the presence of the supervisor, yet the entire collection of taxes for 
that reason, in such case cannot be arrested. People v. Sullivan, 43111. R., 415. 



DIV. VII.] PAY OF ASSESSORS AND DEPUTIES. 235 

assessment books to the county clerk, verified by his affidavit 

substantially in the following form :(1) 

State of Illinois, \ 

-County. / ss - 

assessor of , do solemnly swear that the book to 



which this is attached contains a correct and full list of all the real 
property [or personal property, as the case may be], subject to taxa- 
tion in , so far as I have been able to ascertain the same ; and 

that the assessed value set down in the proper column opposite the 
several kinds and descriptions of property is, in each case, the fair 
cash value of such property, to the best of my knowledge and belief, 
[where the assessment has been corrected by a town board, except as cor- 
rected by the town board] and that the footings of the several col- 
umns in said book, and tabular statements returned herewith, is 
correct, as I verily believe. 

Sec. 91. The assessor shall at the same time deliver to theDeiiveryof 
county clerk all the schedules and statements of personal statements, 
property which shall have been received by him, indorsed 
with the name of the person whose property is listed, and 
arranged in alphabetical order ; and the clerk shall preserve 
the same in his office for two years thereafter. (2) 

Sec. 92. The several assessment books shall be filed in the Assessment 
office of the county clerk, and there remain open to the inspec- books filed - 
tion of all persons : Provided, that the county clerk shall, in proviso, 
the month of April, deliver to the town clerks "of the several D e i iV er to 
towns in the county, the assessment books of their respective town clerk - 
towns for the previous year, such books to be returned by thei874. 
town clerks to the county clerk's office before the 1st of July 
of the same year. 

PAY OF ASSESSORS AND DEPUTY ASSESSORS. 

Sec. 93. The pay of assessors and deputy assessors shall, Pay of assessor. 
from time to time, in counties not under township organiza- 
tion, be determined and fixed by the county board, and in 
counties under township organization by the town board of 
auditors. Such pay shall be for the time necessarily employed 
in making the assessment, to be paid county assessors and 
their deputies out of the county treasury, and town assessors 
and their deputies out of the town treasury. 

Sec. 94. Assessors and deputy assessors shall make out Accounts of 
their accounts in detail, giving the date of each day which assessor - 
they shall have been employed, which account they shall ver- 

(1) See Sec. 280. post, p. 291. 

No appeal lies to the circuit court from the decision of the board of supervisors, in 
reference to property claimed to be exempt from taxation. Worthington v. Co. of 
Pike, 23 IU. R., 363. 

(2) The lists under the above provision cannot lawfully be returned to the town 
clerk, even if so required by the town authorities. If they are so returned and filed 
by the town clerk, he cannot recover therefor for filing them. . No obligation is 
thereby imposed on the town. Town of Charlestown v. McQ-ory, 3G 111 R., 456. 



236 



REVENUE. 



[div. VII. 



ify under oath. The assessor shall not be entitled to compen- 
sation until he shall have filed the lists, schedules, statements 
and hooks appertaining to the assessment of property for such 
year, in the office of the county clerk — the books to be accu- 
rately made and added up. An assessor or deputy assessor 
shall not J>e entitled to pay unless he has performed the labor 
and made return in strict compliance with law. 

DUTIES OE CLERK ON RETURN OF ASSESSMENT BOOKS. 



Duties of clerk 
on return of 



books. 



Correction of 

assessment 

books 



Sec. 95. The clerk, upon receipt of the assessment books 
of real property, shall correct all errors of whatsoever kind 
which he may discover, and add the name of the owner, if 
known, when the same does not already appear, and the 
description of all real property which has been omitted by the 
assessor, and is liable to taxation. 

Sec. 96. If the assessor has listed and assessed any real 
property not returned by the auditor to the clerk, the clerk 
shall immediately advise the auditor thereof, who shall ascer- 
tain if the same is taxable, and advise the clerk. If taxable, 
the clerk shall enter the same in the list of taxable property 
in his office ; if not, he shall correct the assessment books. 



EQUALIZATION OF ASSESSMENTS BY THE COUNTY BOARD. 



Equalization 
by county 
board. 



Sec. 97. The county board, at a meeting to be held for the 
purpose contemplated in this section, on the second Monday 
in July, annually, after the return of the assessment books, 
shall :(1) 



(1) In equalizing assessments as between townships the board of supervisor* 
are onlv authorized to increase or diminish the aggregate valuation cf real estate in 
anv town by adding or deducting such sum upon the hundred dollars, as they may 
deem necessary to produce a just relation between all the valuations of real estate 
in the county. The word " dollars " has evidently been accidentally omitted after 
the word " hundred" in the above section. The board are not authorized in this pro- 
ceeding to add a certain sum to each acre of land in a township. If, in proceeding, 
the board act illegally, it will not vitiate or change the legal acts of the assessors. 
Until legally changed or vacated, their assessments are binding on the tax-payers. 
JPeople v. Allen, 43 111. R., 460. 

The only power the board have over the assessment roll is, to ascertain if 
the valuation in one town or district, bear a just relation to all the towns and dis- 
tricts in the county, and if it does not. the statute authorizes them to increase or 
diminish the aggregate valuation of the real estate in any town or district, by add- 
ing or deducting such sum upon the hundred as may, in their opinion, be necessary 
to produce such relation. And in order to effect this just relation, the board must 
include unimproved as well as improved lands. TJie People ex rel. v. Nichols, 49 111. 
K.. 517. 

The equalization must be made so as not to reduce the aggregate valuation of the 
county ; what is taken from one town must be added to another. The board have 
no authority, however, to equalize the valuation of personal property in manner as 
they have in regard to real estate : corrections in this respect can be made on appli- 
cation of the person aggrieved, under section 13 of this article. Opin. Aud. Mixer, 
Sept. 22, 1869. 

While the law does not allow the aggregate valuation of tlie county to be reduced, 
there is no prohibition against an increase to such an amount as is incidental to an 
equalization, and when the equalization is made pursuant to law and according to 



PIV. VH.] EQUALIZATION BY COUNTY BOARD. 237 

First — Assess all such lands or lots as have been listed by shall assess au 
the county clerk and not assessed by the assessor. Said board SesSJ. by 
may make such alterations in the descriptions of real prop- 
erty as it shall deem necessary. 

Second — On the application of any person considering Hear com- 
himself aggrieved, or who shall complain that the property of gquS't*?*? 8 * 
another is assessed too low, they shall review the assessment assessment. 
and correct the same as shall appear to be just. No com- 
plaint that another is assessed too low shall be acted upon 
until the person so assessed, or his agent, shall be notified of 
such complaint, if a resident of the county. 

Third — To hear and determine the application of anY Als0 appiica- 

,. -, i-iTi , c tion f° r exemp- 

person who is assessed on property, claimed to be exempt irom tion. 
taxation. If the board shall decide that any such property is 
not liable to taxation, and the question as to the liability of 
such property to taxation has not been previously determined, 
as hereinafter provided, the decision of said board shall not 
be final, unless approved by the auditor of public accounts ; 
and it shall be the duty of the county clerk, in all such cases, ^ d u e re of pro ° 
to make out and forward to the auditor a full and complete 
statement of all the facts in the case. If the auditor is satis- 
fied that such property is not legally liable to taxation, he 
shall notify the clerk of his approval of the decision of the 
board, and the said clerk shall correct the assessment accord- 
ingly. But if the auditor is satisfied that such property is 
liable to taxation, he shall advise the clerk of his objection to 
the decision of the board, and give notice to said clerk that 
he will apply to the supreme court in either division, specify- 
ing at what term thereof, for an order to set aside and reverse 
the decision of the county board. Upon the receipt of such 
notice, the clerk shall notify the person making the applica- 
tion aforesaid. It shall be the duty of the auditor to file in 
the supreme court a certified statement of the facts certified 
by the clerk, as aforesaid, together with his objections there- 
to, and the court shall hear and determine the matter as the 
right of the case may be. If the board shall decide that 
property so claimed to be exempt is liable to be taxed, and the 
party aggrieved shall at the time pray an appeal, a brief state- 
ment in the case shall be made by the clerk, and transmitted 
to the auditor, who shall present the case to the supreme court 
in like manner as hereinbefore provided. In either case, the 

the best judgment of the hoard, it should he sustained. Opin. And. Miner. Jan. 30, 

It is thought that the board of supervisors cannot lawfully adopt the valuation 
made by the State board, for purposes of local taxes. Opin. Aud. Miner, April 27, 



238 REVENUE. [DIV. VII. 

collection of the tax shall not be delayed thereby, but in case 
the property is decided to be exempt, the tax shall be abated 
or refunded. 
Board shall see Fourth — It shall ascertain whether the valuations in one 
tfon iuone lua " town or district bear just relation to all the towns or districts 
town bears just in the county ; and may increase or diminish the aggregate 
others in the valuation of property in any town or district, by adding or 
deducting such sum upon the hundred [dollars] as maybe 
necessary to produce a just relation between all the valuations of 
property in the county ; but shall, in no instance, reduce the 
aggregate valuation of all the towns or districts below the 
aggregate valuation thereof, as made by the assessors; neither 
shall it increase the aggregate valuation of all the towns or 
districts, except in such an amount as may be actually neces- 
sary and incidental to a proper and just equalization. It may 
consider lands, town or city lots, personal property, and rail- 
road property (except "railroad track," and "rolling stock,") 
separately, and determine a separate rate per cent, of addition 
or reduction for each of said classes of property, as may be 
necessary to a just equalization of the assessed value of said 
classes of property within the respective towns, and of the 
same between the several towns or districts in the county. 
County board If the county board of any county shall find the aggregate 
?he y assestment assessment of the county is too high or too low, or is generally 
and order new so unequal as to render it impracticable to equalize such 
assessment fairly, they may set aside the assessment of the 
whole county or of any township or townships therein, and 
order a new assessment, with instructions to the assessors 
to increase or diminish the aggregate assessment of such 
county or township, as the case may be, by such an amount as 
said board may deem right and just in the premises, and con- 
sistent with this act. 

REPORT OF ASSESSMENT BY THE CLERK, TO THE AUDITOR, FOR 
EQUALIZATION. 

Report to Sec. 98. On or before the tenth day of July, annually, it shall 

w U h d cn and how he the duty of county clerks, upon the receipt of assess- 
made. ment books, to make out and transmit to the auditor an 

abstract of the assessment of property, showing the num- 
ber, value and average value of each kind of enumerated 
property, as shown by the assessment; the value of each item 
of unenumerated property, and total value of personal prop- 
erty; the length of main track, the length of side track, and 
the numbers, values, and average values of each separate item 



DIV. VII.] STATE BOARD OF EQUALIZATION. 239 

of railroad property; the number of acres, value and average 
value of improved lands; the number of acres, value and aver- 
age value of unimproved lands; the total number of acres, 
total value and average value, per acre, of all lands; the 
number, value and average value of improved town or city 
lots; the number, value and average value of unimproved 
town or city lots ; the total number of lots, total value and 
average value of all lots ; and the total value of all property ; 
the number of acres in cultivation of wheat, corn, oats, 
meadow and other field products in inclosed pasture, orchards 
and woodland, whether inclosed or not in that year. Said 
abstract shall be made out on blanks, which it shall be the 
duty of the auditor to furnish the county clerks for that pur- 
pose. The values to be given in said abstract shall be the vaiueftob? 
assessed valuations, except in the case of railroad property gjjj^ in sald 
denominated "railroad track" and "rolling stock," the value Exception of 
of which shall be given as returned by the railroad company £f l R 1 R. klllda 
to the county clerk. The county clerk shall, at the same property. 
time, and accompanying said abstract, furnish a detailed state- 
ment of the railroad property denominated "railroad track" 
and "rolling stock," reported by each road located in or 
through their counties. If there are any roads so located 
that have not made their reports as required by this act, the 
clerk shall report the fact, giving the name of such railroad. 

Sec. 99. It shall be the duty of the county clerks, in case Failure of 
of failure of any assessor to make return of assessment within SSereSm. 
the time specified in this act, to transmit a statement of the 
assessment in all the towns or districts from which returns Duty of county 
have been received, together with a statement of the amount 
of taxable property assessed in the defaulting towns or dis- 
tricts for the previous year. 

STATE BOARD OF EQUALIZATION. 

Sec. 100. The State board of equalization shall, at the state board of 
expiration of the term of office of the members now forming SwcompSei 
said board, consist of one member from each congressional 
district in the State, elected as hereinafter provided, and the 
auditor of public accounts. (1) 

(l) TJte act to establish a State board of equalization of assessment, is held 
not to be unconstitutional. People ex rel., etc.. v. Salomon, 46 111. R., 342. 

The increase or reduction, as the case may be, determined by the State board 
of equalization to be made on the assessment of property in any county, should be 
extended on the valuation as equalized by the board of supervisors. As to moneys 
and credits, it is considered that they are affected in precisely the same way, and to 
the same extent as other property by the action of the State board. Opinion Auditor 
Miner. October 3, 1867. 

16 



240 



REVENUE. 



[DIV. VII. 



'When elected. 



Returns. 



Vacancy. 



Oath of mem- 
bers. 



Organization 
of board. 



Tabular state- 
ments of 



compiled. 



Secretary. 



Time of meet- 
nig. 



Sec. 101. The qualified electors of each congressional dis- 
trict shall, at the general ekction in November, eighteen hun- 
dred and seventy-two, and every four years thereafter, elect 
one of their number to serve as a member of said board of 
equalization, who shall hold his office for four years, and until 
his successor is elected and qualified. The returns of the poll 
books and certificates of election shall be goverened by the 
laws regulating the election of the members of congress; and 
in case of vacancy occurring in said board by death, resigna- 
tion or otherwise, it shall be the duty of the governor to 
appoint some person, having the qualifications of an elector in 
the district in which such vacancy occurs, to fill the same 
until the next regular election for members of said board. 

Sec. 102. Each member of said board, before entering 
upon the duties of his office, shall take the oath (or affirma- 
mation) prescribed by the constitution of this State. 

Sec. 103. At the first meeting of said board, quadren- 
nially, it shall organize by selecting one of its members as 
chairman, and appointing a secretary; and may, from time to 
time, select such employees as may be deemed necessary. 
The secretary shall take the oath prescribed by the constitu- 
tion. 

Sec. 104. It shall be the duty of the secretary of said 
board, under the direction of the auditor of public accounts, 
to compile the abstracts of assessments received from the 
county clerks into tabular statements, convenient for the use 
of the board; which statements and the original abstracts 
shall be submitted to the board on the first day of its session 
in each year, or as soon thereafter as the board is organized. 
The secretary shall perform such duties in vacation as shall be 
assigned to him by the board. 

Sec. 105 Said board shall assemble at the state capital on 
the second Tuesday in the month of August, annually, and 
examine the abstracts of property assessed for taxation in the 
several counties of this State, as returned to the auditor, and 
shall equalize the assessments as hereinafter provided; but 
said board shall not reduce the aggregate assessed valuation in 
the State; neither shall it increase said aggregate assessed 
valuation, except in such an amount as may be really neces- 



TJie equalization law inienrls that the rate of deduction or addition determined 
by the State board of equalization, shall be applied to the assessed value of property 
in the counties, after all the corrections and equalizations have been made by the 
county authorities. The law does not require any county, town or individual to 
pav a* specific amount as tax; the requirement is (and no other would be consti- 
tutional) that each person and corporation •'shall pay a tax in proportion to the 
value of his or her property," and certain rates of tax are imposed on the valuation 
of all property, as assessed, corrected, and equalized. Opinion Auditor Miner, 
November 13, 1868. 



DTV. VII.] STATE BOARD OF EQUALIZATOIN. 241 

Bary to a just equalization, and not exceeding one per cent, one per cent, 
on such aggregate assessed valuation; but this rule shall not 
apply to railroad property. 

SBC. 106. Said board, in equalizing the valuation of prop- Different 
erty as listed and assessed in the different counties, shall con- ertj^con- prop " 
aider the following classes of property separately, viz.: p e r- sidered - 
sonal property; railroad and telegraph property; lands, and 
town and city lots; and, upon such consideration, determine 
such rates of addition to or deduction from the listed or 
assessed valuation of each of said classes of property in each 
county, or to or from the aggregate assessed value of each of 
said classes in the State, as may be deemed . by the board to 
be equitable and just; such rates being in all cases even and 
not fractional; and such rates, as finally determined by said 
board, shall not be combined. 

Sec. 107. In equalizing the value of personal property state average) 
between the several counties, said board shall cause to be J{^s e of '" 
obtained the State averages of the several kinds of enumer- property, 
ated prnoerty, from the aggregate footings of the number and 
value of each ; and the value of the several kinds of enumer- 
ated property in each county shall be obtained at those aver- 
age values ; and the value of enumerated property thus 
obtained, as compared with the assessed value of such property 
in each county, shall be taken by said board to obtain a rate 
per cent, to be added to or deducted from the total assessed 
value of personal property in each county: Provided, That Proviso, 
whenever in the opinion of the board it is necessary, to a 
more just and equitable equalization of personal property, that 
a rate per cent, be added to or deducted from the value thus 
obtained in any one or more of the counties, said board shall 
have the right so to do ; but the rate per cent, hereinbefore 
required shall first be obtained to form the basis upon which 
the equalization of personal property shall be made. 

Sec. 108.. The State board of equalization shall assess the capital stock 
capital stock of each company or association, respectively, now Son?— how 
or hereafter incorporated under the laws of this State, in the 8586886 * 1 - 
manner hereinbefore in this act provided. The respective 
assessments so made (other than of the capital stock of railroad 
and telegraph companies) shall be certified to by the auditor, 
under direction of said board, to the county clerk of the respec- 
tive counties in which such companies or associations are located, 
and said clerk shall extend the taxes for all purposes on the Serk ° f C ° unty 
respective amounts so certified the same as may be levied on 
the other property in such towns, districts, villages or cities in 
which such companies or associations are located. 



tributed. 



242 REVENUE. [SIT. VII. 

Railroad prop- Sec. 109. Said board shall also assess the railroad property 
erty> denominated in this act as "railroad track" and "rolling 

stock ;" and said board is hereby given the power and author- 
ity, by committee or otherwise, to examine persons and 
papers. The amount so determined and assessed shall be cer- 
tified by the auditor to the county clerks of the proper coun- 
Howdis- ties. The ccunty clerk shall in like manner distribute the 
value, so certified to him by the auditor, to the county and to 
the several towns, districts, villages and cities in his county 
entitled to a proportionate value of such "railroad track " and 
"rolling stock." And said clerk shall extend taxes against 
such values, the, same as against other property in such towns, 
districts, villages and cities. 
capital stock of Sec. 110. The aggregate amount of capital stock of rail- 
graph°co/s— road or telegraph companies assessed by said board shall be 
52d i distrib " distributed proportionately by said board to the several coun- 
ties in like manner that the property of railroads denominated 
"railroad track" is distributed. The amount so determined 
shall be certified by the auditor to the county clerks of the 
proper counties. The county clerk shall in like manner dis- 
tribute the value, so certified to him by the auditor, to the 
county and to the several towns, districts, villages and cities 
in his county entitled to a proportionate value of such capital 
stock. And said clerk shall extend taxes against such values, 
the same as against other property in such towns, districts, 
villages and cities. 
Lands -how Sec. m* Ii an( k sna ^ De equalized by adding to the aggre- 
equaiized. gate assessed value thereof, in every county in which said 
board may believe the valuation to be too low, such rate per 
centum as will raise the same to its proper proportionate value, 
and by deducting from the aggregate assessed value thereof, 
in every county in which said board may believe the valuation 
to be too high, such per centum as will reduce the same to its 
Town and city P r0 P er value. Town and city lots shall be equalized in the 
iots. same manner herein provided for equalizing lands, and, at the 

option of said board, may be combined and equalized with 
lands. 
Table— how Sec. 112. YVTien said board shall have separately considered 
made up. ^e severa i classes of property as hereinbefore required, the 
results shall be combined into one table, and the same shall be 
examined, compared and perfected, in such manner as said 
board shall deem best to accomplish a just equalization of 
assessments throughout the State, preserving, however, the 
principle of separate rates for each class of property. 
Partial returns. Sec. 113. In all cases of partial return from any county 



DIV. Til.] STATE BOARD OF EQUALIZATION. 243 

where the number of defaulting towns or districts do not 
exceed one -third of the whole number of towns or districts in 
the county, the board of equalization may estimate the valua- 
tion in the towns or districts from which returns have not 
been received, and may equalize the total valuation as in other 
cases. In cases where the defaulting towns or districts exceed 
in number one -third of the whole number of towns or dis- 0ne thIrd - 
tricts in the county, and in all cases of failure on the part of 
any county clerk to furnish the proper returns of the assess- 
ment of his county to the auditor prior to or during the meet- 
ing of the board of equalization, in each year, said board may, 
by order, authorize the auditor to equalize the assessment of ^jJJuz® ^ess- 
such county when full returns have been received by him. ments. 

Sec. 114. When said board shall have completed its equali- Duty of board 
zation of assessments, for any year, the chairman and secre- Sonof ^e e " 
tary shall certify to the auditor the rates finally determined equalization, 
by said board to be added to or deducted from the listed or 
assessed valuation of each class of property in the several 
counties, and also the amounts assessed by said board ; and it 
shall be the duty of said auditor, under his seal of oflice, to 
report the action of the board to the several county clerks, 
immediately after the adjournment of said board. 

Sec. 115. A report of the proceedings of said board of Report to be 
equalization shall" be published annually, in pamphlet form, pu 
and five thousand copies thereof printed, of which number 
each member shall be entitled to fifty copies, the auditor to Numberof 
five hundred copies, and the remainder thereof shall be dis- ies and mode 
tributed by the secretary of state to the several counties, in 
the proportion usual in similar cases. Said distribution shall 
be made by mail or express, immediately upon the receipt of 
said report from the public printer, the cost of such distribu- 
tion to be paid by the secretary of state out of the appropri- 
ation for incidental expenses. 

Sec. 116. The secretary of state shall furnish such print- sec'y of state 
ing, fuel, lights and rooms as may be necessary for the trans- rooms^ U etc! sh 
action of the business of said board. Each member of said 
board shall receive for his services the sum of five dollars per Compensation, 
day during its sessions, and ten cents per mile for each mile Mileage, 
necessarily traveled in going to and returning from the seat 
of government, to be computed by the auditor of public 
.accounts, and no other allowance or emolument, directly or 
indirectly, for any purpose whatever, except the sum of ten 
dollars per session to each member, which shall be in full for 
postage, stationery, newspapers, and all other incidentals and incidentals, 
perquisites. The pay and mileage allowed to each member of 



244 REVENUE. [DIV. VII, 

said board, and the pay allowed to its secretary and employees 

shall be certified by the chairman of the board to the auditor 

of public accounts, who shall issue his warrants on the State 
Page, janitor, treasurer therefor. Said board may employ one page, at two 

dollars per day ; two secretaries, at five dollars per day each ; 

and one janitor or doorkeeper, at three dollars per day. Two- 
Quorum. thirds of the whole number of members shall constitute a 

quorum, and said board may adjourn from time to time until 

the business before it is disposed of. 

RATES OF TAXATION. 

Rates of taxa- Sec. 117. All rates for taxes, hereinafter provided for, shall 
tion. k e ex tended by the county clerk on the assessed valuation of 

property, as equalized and assessed by the State board of 

equalization. 

FOR STATE PURPOSES. 

For state pur- Sec. 118. The governor, auditor and treasurer shall, annu- 
Kialee?tain a %> on tne completion of the assessment and equalization of 
rate per cent, property, ascertain the rate per cent, required to produce the 

amount of taxes levied by the General Assembly, 
"state school Sec. 119. There shall be annually assessed and collected, 
tax -" at the same time and in the same manner as other State taxes, 

such rate of tax on the equalized valuation of the property of 
this State, as is or may be provided by the laws concerning 
free schools, which tax shall be denominated the " State school 
tax," and the moneys arising therefrom be distributed in such 
manner as is or may be provided by the laws of this State con- 
cerning free schools ; and no part of the fund raised by the 
aforesaid tax shall be diverted to or used for any other pur- 
pose than the support and maintenance of free schools in this 
State. 
Auditor to Sec. 120. The auditor shall, annually, compute and certify 

compute rates to t h e county clerks such separate rates per cent, as will pro- 
per cent for — J CI 1 • J 1 1 . i 

duce tne net amounts ot fetate taxes authorized to be levied : 
"Revenue First — For revenue purposes, to be designated "Revenue 

fund -" Fund." 

"interest fund" Second — For interest purposes, to be designated "Interest 

Fund." 
^ le school Third — For the State school purposes, to be designated' 

"State School Fund." 

Fourth — For such other taxes as may be required by law 

to be levied by him. 



DIV. VII.] COLLECTOR'S BOOKS — EXTENDING RATES. 245 

The ''Interest Fund" tax shall be levied so long only as interest fund, 
the same may be necessary, and shall be applied to the pay- how apphed ' 
ment of interest only. 

FOR COUNTY PURPOSES. 

Sec. 121. The county board of the respective counties Taxes 
shall, annually, at the September session, determine the purposes. 7 
amounts of all taxes to be raised for county purposes, the 
aggregate amount of which shall not exceed the rate of 
seventy -five cents on the one hundred dollars valuation of prop- 
erty, except for payment of indebtedness existing at the 
adoption of the present State constitution, unless authorized 
by a vote of the people of the county. When for several 
purposes, the amount for each purpose shall be stated sepa- 
rately^!) 



FOR ALL OTHER PURPOSES. 

Sec. 122. The proper authorities of towns, townships, dis- 
tricts and incorporated cities, towns and villages, collecting 
taxes under the provisions of this act, shall annually, on or 
before the second Tuesday in August, certify to the county ^wnfdty 
clerk the several amounts which they severally require to be^° t s ^ r 
raised by taxation, anything in their respective charters, or 
in acts heretofore passed by the General Assembly of this 
State, to the contrary notwithstanding. 

COLLECTORS' BOOKS — EXTENDING RATES. 

Sec. 123. The county clerk shall, annually, make out for collectors 
the use of collectors, in books to be furnished by the county, books - 
correct lists of taxable property, as assessed and equalized. 

Sec. 124. In counties not under township organization, such how made ftp. 
book shall be made up by congressional townships — but 
parts or fractional townships, less than full townships, may 

(1) The levy of a special tax for purposes not axithorized by law, is void. But 
when authority exists to levy a tax to pay existing indebtedness, the levying of a 
tax in connection therewith not authorized, does not render the entire levy void, if 
the authorized tax can be separated from that unauthorized. Allen, etc., v. Peoria, 
etc., B. B. Co., 44 111. R., 85. See also Briscoe v. Allison, 43 111. R., 29. 

A. court of equity will not enjoin a tax for mere errors, if it is attempted to 
be levied by an officer de facto, under authority incident to his office ; but may do so 
if the levy is by one without pretense ot authority or color of office, to which such 
right is an incident. JIunson v. Minor, 22 111. R., 602. 

The board of supervisors have no authority to instruct the county treas- 
urer to withhold any part of the State tax. In case of an injunction restraining the 
collection of tax, the amount of the State tax thus enjoined may be certified by the 
county clerk as a separate item of credit, and it will be allowed by the auditor, con- 
ditionally, until the injunction case is decided. Opin. Auditor Miner June IS, 1868. 



246 REVENUE. [DIV. VII. 

be added to full townships, at the discretion of the county 
board. In counties under township organization, said 
books shall be made to correspond with the organized town- 
ships. Separate books may be made for the collection of all 
taxes within the corporate limits of cities, towns and villages. 
This section shall not be construed to interfere with the tax 
book provided for in this act, for the use of county collectors, 
for collecting all taxes charged against railroad property and 
the capital stock of telegraph companies. 
Collector's Sec. 125. The respective county clerks shall cause the col- 

rui°edr h0W lectors' books to be properly ruled for the several classes of 
property, providing for each class three columns for values — 
the first to show the assessed valuation ; the second to show 
the valuation as corrected and equalized by the county board; 
and the third to show the valuation as equalized or assessed 
by the State board of equalization. Said books to contain 
proper columns for the extension of the several kinds of taxes, 
and other purposes, 
cierk shall Sec. 126. Said clerks shall extend the rates of addition or 

deductions and deduction ordered by the county board and State board of 
additions. equalization, in the several columns provided for that purpose. 
The rates per cent, ordered by the State board of equalization 
shall be extended on the assessed valuation of property, as 
Exception. corrected and equalized by the county board — except, that in 
the case of railroad property, denominated " railroad track " 
and " rolling stock," said rates shall be extended on the listed 
nation° nal val * valuations of such designated property. In all cases of exten- 
sion of valuation, where the equalized valuation shall happen 
to be fractional, the clerk shall reject all such fractions as may 
fall below fifty cents ; fractions of fifty cents or more shall be 
extended as one dollar, 
clerks shall Sec. 127. The said clerks shall estimate and determine the 

pSrcent/^ 6 ra *e per cent, upon the proper valuation of property in the 
respective towns, townships, districts and incorporated cities, 
town and villages in their counties, that will produce, within 
the proper divisions of such counties, not less than the net 
amount of the several sums that shall be required by the 
county board, or certified to them according to law. 
cierk shall Sec 128. All State and county taxes shall be extended by 

the respective county clerks upon the property in their coun- 
ties, upon the valuation produced by the equalization and 
assessment of property by the State board of equalization. 
Town, district, village, city and other taxes, shall also be 
extended against such assessed and equalized valuation of 
property within their respective jurisdictions. In the exten- 



PIV. VII.] COLLECTOR'S BOOKS — EXTENDING RATES. 247 

sion of taxes, the fraction of a cent shall be extended as one Fraction of 
cent. ccnt * 

Sec. 129. In all cases, where any real property has hereto- Forfeited 
fore been, or may hereafter be, forfeited to the State for taxes, property - 
it shall be the duty of the clerk, when he is making up the 
amount of tax due on such real property for the current year, 
to add the amount of back tax, interest, penalty and printers' 
fees remaining due on such real property, with one year's Year's interest 
interest at ten per cent, on the amount of tax due, to the tax 
of the current year, and the aggregate amount so added to- 
gether shall be collected in like manner as the tax on other real 
property for that year may be collected : Provided, that the Proviso, 
county clerk shall first carefully examine said list, and strike 
therefrom all errors, and otherwise make such corrections as 
may be necessary with respect to such property or tax. 

Sec. 130. When the books or lists for the collectors are statement of 
completed, the county clerk shall make a complete statement a^fo^warded 
of the assessment and taxes charged, on blanks, and in con- to auditor, 
formity to instructions furnished to him by the auditor. The 
clerk shall record said statement, and forward it, properly cer- 
tified, to said auditor. 

Sec. 131. It shall be the duty of the county clerk to certificate of 
make, in each collector's book, a certificate of the rate of additions! 8 ana 
deduction or addition determined by the State board of equali- 
zation in the county to which such books shall pertain; and, 
also, the rate of addition or deduction determined by the 
county board in the town, district, city or village to which 
such book shall pertain. 

Sec. 132. To each collector's book, a warrant, under theWamntfor 
hand and official seal of the county clerk, shall be annexed, 
commanding the collector to collect from the several persons 
named in said book, the several sums entered in the column 
of totals, opposite their respective names. The warrant shall 
direct the collector to pay over the several kinds of taxes that 
may be collected by him, to the respective officers entitled 
thereto, less the compensation for collection allowed him by 
law.(l) 

CD Where the law requires a collector's warrant to be sinned by certain 
officers, and the warrant bears their signatures, but preceding one of the signatures, 
the word " countersigned " appears, it is nevertheless a proper signing of the instru- 
ment, and forms no objection to it. The law is answered when the signatures of the 
officers named in the statute appear upon the instrument. Gumee v. The City of Chi- 
cago, 40 111. R., 165. 

A collector's warrant confers the same authority, and performs the same 
office as &fi. fa. execution, and when regular and fair on its face, protects the officer 
and those acquiring rights under it, to the same extent as an execution. Hill et at. 
v. Figley, 25 111. R., 156. 

All the personal property of the tax payer is bound for the payment of hia 
taxes, from the time the coUector receives bis warrant until they shall have been 



248 



REVENUE. 



[DIV. vn. 



QUALIFICATION OF TOWN AND DISTRICT COLLECTORS. 



Sec 133. Every town or district collector, before he enters 
upon the duties of his office, and within eight days after he 
receives notice of the amount of taxes to be collected by him, 
shall execute a bond, with two or more securities, to be 
approved by the county board, or supervisor and town clerk 
of his town, as the case may require, in double the amount of 
such taxes, conditioned for the faithful execution of his duties 
as such collector. Signatures to such bond, signed with a 
m°usfbewu- ark mark shall be witnessed, but in no other case shall witness be 
nessed. required. Said bond shall be substantially in the following 

form, to wit: 



Qualification 
of collectors. 



Securities. 



Signatures to 



Form of col- Know all men bv these presents, that we, A. B., of the of 

lector's bond. ? i n t j ie COU nty of , in the State of Illinois, town 

[or district] collector, and C. D. and E. F., of the said county and 
State, as securities, are held and firmly bound unto the people of the 

State of Illinois, in the penal sum of , for the payment of 

which, well and truly to be made, we bind ourselves, our heirs, 
executors and administrators, firmly by these presents. Signed and 

sealed, this day of , A. D. 18 — . 

The condition of the foregoing bond is such, that if the above 
bound A. B. shall perform all the duties required to be performed by 
him, as collector of the taxes for the year 18 — , in the town [or dis- 
trict] of , in the county of , Illinois, in the time and 

manner prescribed by law, and, when he shall be succeeded in office, 
shall surrender and deliver over to his successor in office all books, 
papers and moneys appertaining to his said office, then the foregoing 
bond to be void ; otherwise to remain in full force. 

A. B. [seal 
C. D. [seal" 
E. F. [seal 

He shall also take and subscribe an oath, to be indorsed on 
the back of the bond, substantially as follows : 

Oath. I do solemnly swear that I will support the constitution of the 

United States and the constitution of the State of Illinois, and that 
I will faithfully discharge the duties of the office of town [or dis- 
trict] collector, according to the best of my ability. 

Sec. 134. The chairman of the county board, or town 



?aid. The warrant, like an execution, operates as a lien. Rill et al. v. Figley, 23 
11. R., 418. Held, that though a tax was illegally levied, yet the collector, who was 
simply the ministerial officer of the town, to whom a warrant was directed, regular 
on its face, and which he was to collect or not at his peril, was not liable for the 
costs of an injunction restraining the collection of the tax. It seems it would be 
otherwise if he had actually attempted to collect the tax. Drake et al. v. Phillips et 
al., 40 111. R., 389. 

The payment of an assessment is not voluntarily made if the Collector has a 
warrant, by virtue of which he may levy and sell ; and the party who has paid the 
money may recover it of a municipal corporation ; although the assessment was 
illegal, the city having the money for its general uses. Bradford v. City oj Chicago, 
25 111. R., 411. 



DIV. VII.] RETURN OF BOOKS — WARRANT. 249 

supervisor, as the case may require, shall, within six days Bond, by 
thereafter, file such bond, with such approval indorsed thereon, p' r ov™d ap 
in the office of the recorder, who shall record the same, 
including the oath, in a separate book to be provided for the 
purpose, and when recorded, shall be filed in the office of the 
county clerk by the recorder. Said bond, when so filed for Filed for 
record, shall be a lien against the real estate of such town or record, 
district collector, until he shall have complied with the con- 
ditions thereof. 

DELIVERY OF COLLECTOR'S BOOKS — WARRANTS. 

Sec. 135. The respective county clerks shall, on or before, Delivery of 
or within ten days after the first day of December, annually, books. tors 
or as soon thereafter as the collectors are duly qualified, deliver 
to them the books for the collection of taxes; and it shall be 
the duty of the collectors, within such time, or as soon there- 
after as they are qualified, to call at the clerk's office and 
receive said books. The tax book, provided for collecting all Railroad and 
taxes charged against railroad propertv, and the capital stock telegraph 

. orooertv 

of telegraph companies, shall be delivered to the county col- 
lector, within the same time, annually, or as soon thereafter as 
he is qualified. If the books for the collection of taxes are 
not completed .and ready for delivety to the collectors at the 
time herein specified, they shall be delivered as soon as they 
are completed. 

Sec. 136. To each town or district collector's book a^JJ^JJJ t0 
warrant, under the hand of the county clerk and seal of his book- 
office, shall be annexed, commanding such town or district col- 
lector to collect from the several persons named in said town 
or district collector's book, the several sums of taxes therein 
charged, opposite their respective names. 

Sec. 137. In all cases the warrant shall authorize the L » ws ists, 
town or district collector, in case any person named in such col- Jgi e s^o4. ea * , 
lector's book shall neglect or refuse to pay his personal prop- ^— v~— ' 
erty tax, to levy the same by distress and sale of the goods Refusal to pay 
and chattels of such person ; and it shall require all payments Town collector 
therein specified to be made by such town or district collector ™ 1 a 1 y levyand 
on or before the tenth day of March next ensuing. 

Sec. 138. The warrant shall direct the town or district col- ^^o^coi- 
lector, after deducting the compensation to which he may be pay funds, 
legally entitled, to pay over to the proper officers the amount 
of tax collected for the support of highways and bridges, and 
to the supervisor of the town the moneys which shall have 
been collected therein, to defray town exnenses; to the proper 



250 



REVENUE. 



[div. VII. 



school officers, the district school tax : to the city or incorpo- 
rated town or village treasurer, or other proper officer, the 
taxes or special assessments collected by him for such city or 
incorporated town or village, or others, as often and at such 
times as may be demanded by the proper officer ; and to the 
county collector, the county tax and the taxes payable to the 
State treasury collected by him. 
ciert to make Sec. 139. On the delivery of the tax books to the town or 
Dient edstate district collectors, the clerk shall make a certified statement, 
setting forth the name of each town or district collector, the 
amount of taxes to be collected and paid over for each pur- 
pose for which the tax is levied in each of the several towns 
or districts, cities and villages, and furnish the same to the 
county collector. 

APPOINTMENT OF COLLECTORS IN COUNTIES NOT UNDER TOWN- 
SHIP ORGANIZATION. 



Sheriff ex- offi- 
cio collector. 



Sec. 140. Each county in this State, not under township 
organization, shall be a collection district for the purposes of 
this act ; and the sheriffs of such counties shall be, respec- 
tively, ex -officio district collectors of such collection districts. 



VACANCIES AND RESIGNATIONS. 



Vacancies, bow 
filled. 



Sec. 141. If any town or district collector in this State 
shall refuse to serve, or shall die, resign or remove out of the 
county, district or town for which he was elected or appointed, 
or the office becomes vacated in any other way, before he shall 
have entered upon or completed the duties of his office, or 
shall in any way be prevented from completing the same, the 
county or town board, as the case may require, shall forthwith 
appoint a collector for the remainder of the year, who shall 
give the like security and be subject to the like penalties, and 
have the same power and compensation as the town or district 
collector in whose place he was appointed, and the county col- 
lector shall forthwith be notified of such appointment. Such 
appointment shall not exonerate the former town collector or 
Resignations. hi s securities from any liability incurred by him or them. No 
resignation of a town or district collector shall be accepted, 
unless sufficient cause is shown, nor shall the person resigning 
be re -appointed to complete the collections in the same or 
any other town or district in the county. 

Sec. 142. The town or district collector so appointed shall 
keep an account of all collections made by the former col- 



Security to be 
given by 
appointee. 



Former col- 
lectors 
accounts. 



DIV. VII.] TREASURER EX-OFFICIO COLLECTOR. 251 

lector, so far as he can ascertain the same, and ■when any one 
shall present a receipt for taxes paid to the former collector, 
he shall mark against the amount of such taxes, to whom and 
when paid. 

Sec. 143. In case of such appointment, the chairman of Time for coi- 
the county board or the supervisor of the town, may extend e^tendeS. ay * 
the time for the collection of taxes, for a period not exceeding 
twenty days, of which extension the county collector shall be 
notified. 

TREASURER EX-OFFICIO COLLECTOR. 

Sec. 144. The treasurers of counties under township organi- county treas- 
zation, and the sheriffs of counties not under township organi- coTiector. Cl ° 
zation, shall be ex -officio county collectors of their respective 
counties. 

Sec. 145. Said collector shall, on or before the first day of His bond. 
December, annually, or as soon as he is elected and qualified, 
and before he enters upon the duties of his office as collector, 
execute a bond, in addition to his bond as treasurer, in a penal 
sum of at least double the amount of State taxes to be col- 
lected in the year next thereafter, with two or more securities, 
who shall be residents of the said county, and owners of real securities, 
estate located within this State, equal in value to the amount 
specified in the bond ; which amount shall be determined, and 
which bond shall be approved by the county board. Each 
name shall be recited, in full, in the body of the bond. The Signature8 by 
signatures to such bond, signed by a mark, shall be witnessed, mark must be 
but in no other case shall witness be required. Such bond 
shall be substantially in the following form, to wit : 

Know all men by these presents, that we, A. B., collector, and C. Bon<1 
D. and E. F., securities, all of the county of ,and State of Illi- 
nois, are held and firmly bound unto the People of the State of 

Illinois, in the penal sum of dollars, for the payment of which, 

well and truly to be made, we bind ourselves, each of us, our heirs, 
executors and administrators, firmly by these presents. Signed and 
sealed, this day of , 18 — . 

The condition of the foregoing bond is such that if the above conditions 
bound A. B. shall perform all the duties required to be performed by 
him as collector of the taxes for the year 18 — , in the county of 

, in the State of Illinois, in the time and manner prescribed 

by law, and when he shall be succeeded in office, shall surrender 
and deliver over to his successor in office all books, papers and 
moneys appertaining to his said office, then the foregoing bond to 
be void : otherwise to remain in full force. 

A. B. [seal/ 
C. D. [seal." 
;E. F. [seal/ 



252 



REVENUE. 



[DIV. VII, 



His oath. 



Approval of 
bond. 



Who may 
approve. 



Bond to be filed 
in auditor's 
office. 



New bond.' 



Liability of 
security. 



Securities on 
bond. 



He shall also take and subscribe an oath, to be indorsed on 
the back of the bond, substantially as follows : 

I do solemnly swear that I will support the Constitution of the 
United States and the Constitution of the State of Illinois, and that I 
will faithfully discharge the duties of the office of county collector 
according to the best of my ability.(l) 

Sec. 146. The collector's bond shall be approved by the 
county board, and shall be recorded on the records of said 
board, and forthwith mailed to the auditor by the county clerk. 
Said clerk shall attach his certificate to said bond, under the 
seal of his office, showing that it has been duly approved and 
recorded. Said bond, when approved and recorded, shall be 
a lien against the real estate of such collector until he shall 
have complied with the conditions thereof. 

Sec. 147. The chairman of the county board, the county 
judge and the county clerk shall have power and authority to 
approve the bond of the county collector in like manner as 
the county board has to approve said collector's bond ; and 
said bond, when so approved, shall be sbuject to the several 
provisions of this act, the same as if approved by said board. 

Sec. 148 The collector's bond, when received by the audi- 
tor, and if found to be made in conformity to law, and the 
securities satisfactory, shall be filed in his office and the fact 
thereof certified to the county clerk. If the auditor finds 
said bond to be not in accordance with law, or if he has reason 
to doubt the sufficiency of the surety, he shall return the bond 
to the county clerk, who shall notify the collector to make a 
sufficient bond. If a new bond is required, it shall be approved 
and recorded and subject to the requirements of this section, 
the same as the first bond given by the collector. No tax 
books or lists shall be placed in the hands of the county col- 
lector until the auditor's certificate, under the seal of his 
office, has been received by the county clerk, showing that the 
collector's bond has been received and filed in the auditor's 
office. Nothing in this section shall be construed as relieving 
the securities of a collector from liabilities incurred under a 
bond not approved and filed by the auditor. 

Sec. 149. The securities of any bond given in pursuance 
of this act, or either of them, may at any time after the exe- 
cution of said bond, if they, or either of them, have good 
reason to believe that the officer in said bond is about to fail 



(1) De facto collector. A collector of taxes, although he may not have taken an 
oath of office in the manner prescribed by the statute, may be an officer de facto, so 
far as the public and third persons are concerned, while he retains the office, and 
exercises the duties of it. Guyer v. Andrews, 11 111., 491 



DIV. VII.] COUNTY COLLECTOR. 253 

to comply with the conditions thereof, file with the county May notify offi- 
clerk a notice in writing, verified under oath, by the person aJidUicmai 
asking to be discharged, setting forth the facts in the case, security, 
and asking to be released from any further liability on said 
bond ; whereupon the clerk, with whom such notice shall be 
filed, shall notify the said officer to give additional security, 
equal to the security about to be released by the county board, 
which notice may be served by the said clerk, or by any per- 
son appointed by said board or clerk. If the officer so noti- Removal of 
fied shall not appear and give additional security within two officer ' 
days after notification, the county board may remove him 
from office; and in all such cases said board shall appoint 
some person to fill the vacancy occasioned by such removal, 
who shall execute bond, qualify and perform the duties 
required as such officer. 

Sec. 150. If the securities on any collector's bond, or Absconding 
either of them, shall be satisfied, that such collector is making collector - 
improper use of the funds collected by him, or has absconded, 
or is about to abscond, from this State, whereby said securities 
may become liable to pay any sum or sums of money, it shall 
be lawful for said security to sue out a writ of attachment ^"un^id of 
against the goods and chattels of such collector in like manner security. 
as he would be authorized to do if said collector was person- 
ally indebted to such security; and the money collected on 
any such attachment shall be paid into the State, county, 
town or city treasury, by the officer collecting the same, in 
like manner as if paid over by the collector. 

Sec. 151. In case of the death of any county collector Death of 
during the time the tax books are in his hands, and before the collector - 
time specified in this act for making settlements, the county 
clerk shall demand and take charge of the tax books. Said 
clerk shall appoint one or more competent persons to examine 
said tax books; and it shall be the duty of the persons so 
appointed to ascertain the amount remaining uncollected, and 
make out a correct abstract of the same : Provided, that Proviso, 
should there be but a small portion of the taxes collected at 
the time of the death of the collector, then the amount actually 
collected shall be ascertained, and the same books used in 
completing the collections. 

Sec. 152. Collectors may appoint deputies by an instru- Deputy coi* 
ment in writing, duly signed, and may also revoke any such appoinTed ^ 
appointment at their pleasure; and may require bonds or 
other securities from such deputies, to secure themselves. And 
each such deputy shall have like authority, in every respect, 
to collect the taxes levied or assessed within the portion of the 



254 



REVENUE. 



[DIV. VII. 



county, town, district, village or city assigned to him, which 
by this act is vested in the collector himself; but each col- 
lector shall, in every respect, be responsible to the State, 
county, towns, villages, cities, districts and individuals, com- 
panies or corporations, as the case may be, for all moneys 
collected and for every act done by any of his deputies, whilst 
acting as such, and for any omission of duty of such deputy. 
Any bond or security taken from a deputy, by a collector, 
pursuant to this act, shall be available to such collector, his 
representatives and securities, to indemnify them for any loss 
or damage accruing from any act of such deputy. 

Sec. 153. The county clerk, on being requested by any 



Bond of dep- 
uty. 



Warrant 



funSshedTo 11 ^ collector, shall attach a warrant, under his hand and the seal 
deputy. of his office, to any list furnished by such collector to his dep- 

uty, which warrant shall be in the same manner and form as 
is required to the original collector's list or book, except that 
the amount collected by such deputy shall be paid to the col- 
lector, who shall pay the same over to the proper officers or 
persons. 



MANNER IN WHICH TAXES ARE TO BE COLLECTED. 



Currency in 
which taxes 
are payable. 




Town collect- 
ors — how to 
proceed. 



Sec. 154. The county revenue shall be collected in gold 
and silver coin, United States legal tender notes, current 
national bank notes, county orders and jury certificates, and 
in no other currency. The revenue for State purposes shall 
be collected in gold and silver coin, United States legal tender 
notes, current national bank notes, and auditor's warrants, 
and in no other currency. State taxes levied for any special 
purpose, other than to defray the ordinary expenses of the 
State government, shall be collected in gold and silver coin, 
United States legal tender notes, current national bank notes, 
and in no other currency. All other taxes shall be collected 
in gold and silver coin, United States legal tender notes, and 
in current national bank notes, and in no other currency, 
unless otherwise specially provided for.(l)* 

Sec. 155. Every town collector, upon receiving the tax 
book or books, shall proceed to collect the taxes therein men- 
tioned, and for that purpose shall call at least once on the per- 
son taxed, or at his place of residence or business, if in the 

(1) The mandate of the State to its officers, as to the kind of funds in which the 
revenue shall be collected, cannot be disobeyed. Congress has no power over the 
subject. State Treasurer v. Collector of Sangamon Co., 28 111. R., 512. 

Money, whether in the State treasury, or in the hands of the collector, is alike the 
propertv of the State. The People v. Miner, 46 111. R.. 385 

By the new constitution, all taxes levied for State purposes, is required to be 
paid into the State treasury. Art. 9, Sec. 7. 

^Amended, see post p. 298a. 



DIV. VII.] MANNER OF COLLECTION OF TAXES. 255 

town of such collector, and shall demand payment of the 
taxes charged to him on his property : Provided, that in Proviso, 
counties not under township organization, it shall be the duty 
of the collector to give notice, in a newspaper published in 
the county, if any such newspaper there be, stating when and 
where he will attend in each precinct, for the purpose of 
receiving taxes, and also by causing written or printed notices Notlces ' 
to be posted in three of the most public places in each pre- 
cinct, stating the time, and the place where, he will be in such 
precinct, for the purpose of collecting the taxes therein ; which 
said notices shall be published or posted at least ten days 
before the time fixed for the collection of such taxes, and said 
notices shall be deemed a sufficient demand for said taxes. (1) 

Sec. 156. In case any person, company or corporation shall Distress 
refuse or neglect to pay the taxes imposed upon him or them, an ** e ' 
when demanded, it shall be the duty of the collector to levy 
the same, together with the costs and charges that may accrue, 
by distress and sale of the personal property of the person, 
company or corporation who ought to pay the same. (2) 

(1) A mortgagor or mortgagee in jwssession is bound to pay the taxes on 
the mortgaged premises, the latter will be allowed therefor on foreclosure of the 
mortgage. Wright et al. v. Langley, 36 111. R., 881 ; Moore v. TUman, 44 111. R., 367. 

A party in actual possession of lands under a contract, listed in his name, is per- 
sonally liable for the taxes. Glancey v. Elliott, 14 111. R., 458. 

An assignee is bound, while the assets remain in his hands for administration, 
to pay the taxes assessed thereon. Ryan v. Gallatin County, 14 111. R., 82. 

A person having a life estate in lands is bound to pay the taxes thereon dur- 
ing the existence of the estate, unless exempt by the instrument creating the.estate. 
Higgins v. Crosby, 40 111. R.. 253 ; Waldo et al. v. Cummings et al., 45 111. R., 421. 

The assignee of a lease for the title of another, is bound to pay all taxes on the 
premises during his tenancy. Prettyman v. Walston, 34 111. R., 192. 

Co-teuants are equally bound to keep the taxes paid, and one who pays all 
taxes can recover of the other for the amount with interest. Morgan et al. v. Her- 
rick, administrator, etc., et al., 21 111. R., 481 ; Chickering el al. v. Failes, 3*8 111. R., 342. 

If the taxes are paid by a tenant, it will enure to the benefit of the landlord. If 
bv a trustee, or cestui que trust, to the benefit of the combined legal and equitable 
title claimed. Colfield v. Furry, 19 111. R., 183. 

An administrator is not bound by law to pay taxes on the real estate left by 
the decedent. Stone el al. v. Wood, 16 111. R., 177. 

Upon the question on whose account and for whom payment of taxes has been 
made, the tax receipts therefor are not conclusive evidence. Like other receipts, 
thev are susceptible of explanation. Rand v : Scofield, 43 111. R., 168; see case of 
Hickman v. Whetstone, 23 111. R., 188. 

Ordinarily, a party of whom a tax is illegally collected, has an ample remedy at 
law by an action of trespass against the officer collecting it, or by an action of 
assumpsit to recover back the money paid. Cook County v. C. B. & Q. R. R. Co., 35 111. 
R., 467. 

A tax is not an ordinary debt ; it takes precedence of all other demands, and 
is a charge upon the property, without reference to the matter of ownership. Dun- 
loy v. County of Gallatin, 15 111. R., 9. 

A tax has been held to be recoverable by action like a debt. Ryan v. Gallatin 
County. 14 111. R., 78; Creps v. Baird. 30 Ohio R., 277. 

(2) The remedy by distress for the collection of taxes is not necessarily exclu- 
sive. The same remedy may be pursued as for the collection of debts. Ryan v. Gal- 
latin County, 14 111. R., 83. A note in the hands of an attorney for collection, the 
property of a delinquent tax-payer, may be reached for the payment of the tax, by 
proceeding as in case of a debt. Opinion Auditor Miner, February 13, 1868. 

A tax creates a lies, and takes precedence of judgments and all other claims, and 
no property is free from levy and sale for the payment thereof. Dennis v. Maynard 
et al., 15 111. R., 481 ; Dunlap v. Gallatin County, 15 111 R., 9. 

Household goods are not exempt from taxation nor from being distrained and 
sold for taxes. Opinion Auditor Miner, April 18, 1867. Dennis v. Maynard et al., 15 
111. R., 481. 

17 



256 REVENUE. [DIV. VII. 

Public notice Sec. 157. The collector shall give public notice of the 

of sale. .j.- me an( j p} ace f sa i e5 an( j f the property to be sold, with 

the name of the delinquent, at least five days previous to the 
day of sale, by advertisements, to be posted up in at least 
three public places, in the town or district where such sale is 

auctio 7 publ,c to be made. Such sale shall be by public auction, and, if 
practicable, no more property shall be sold than sufficient to 
pay the tax, costs and charges due. If the property distrained 
shall be sold for more than the amount of the taxes and 
charges due, the surplus shall be returned to the person in 
whose possession such property was when the distress was 

Surplus. made, if no claim be made to such surplus by any other per- 

son. If any other person shall claim such surplus, on the 
ground that the property sold belonged to him, and such 
claim be admitted by the person for whose tax the same was 
distrained, the surplus shall be paid to such owner. 

Insurance companies are required to pay the tax assessed on them, and collections 
are to be made by distraint and sale of personal property in the same manner as 
that of other corporations or individuals. Opinion Auditor Lippincott, February 
21, 1870, January 28, 1870. 

The tax on personal property cannot be carried forward from one year to 
another. If the tax is not paid the property must be distrained and sold unless the 
tax-payer becomes insolvent or has absconded and no property can be found. If 
the tax on personal property liable to tax for former years was omitted to be 
assessed, it should be assessed for the current year as well as for the years . foe 
which it was liable but omitted to be assessed. Opin. Aud. Lippincott, Nov. 26, 1869. 

Collectors not only have the power, but it is their imperative duty to sell personal 
property for real estate tax, after demand, if they can find any to sell. Opinion 
Auditor Miner, December 8, 1868. 

Where irregularities occur in the listing of property, but which do not have the 
effect to render the tax wholly void, the collector, who has distrained for taxes 
unpaid, will not be liable to an action for such irregularity, which is not his fault. 
Exchange Bank Columbus v. Hines, 3 Ohio State R., 1. 

A- township collector has the right to go out of his town and to any place 
within his county to collect any tax, whether real or personal, assessed in his dis- 
trict. See Sec. 68. Opinion Auditor Lippincott, January 7, 1870. 

If the collector shall make a return that he could not find goods and chattels 
whereon to levy and collect the amount assessed, that will be conclusive of the fact 
stated. If the return is false, the officer is responsible. City oj Ottawa v. Macy et al., 
20 111. R., 413. 

The collector, in collecting the tax cliarged upon his list, acts as a ministe- 
rial officer, and is protected by his warrant the same as any other ministerial officer 
would be in executing process. The rule in such case is, that if a ministerial officer 
executes process, upon the face of which it appears that the court issuing it had not 
jurisdiction of the subject matter or of the person of the defendant, the process will 
afford him no proteetion for acts done under it. But if the subject matter of the 
suit is within the jurisdiction of the court, but there is want of jurisdiction of the 
person, the officer executing the process is not liable, unless the want of jurisdiction 
appears by the process. Therefore, where a county clerk places property, which is 
the subject of taxation, upon the tax list within the proper time and assesses the 
same with a tax, in pursuance of the statute prescribing his duties in this respect, 
but without notice to the party interested, the collector is not a trespasser in the 
collection of such tax, by reason of such want of notice, unless it is disclosed by the 
tax list and warrant, or otherwise personally known to the treasurer. Champaign 
Co. Bank v. Smith, 7 Ohio State R., 42. 

Where irregularities occur in. the listing of property, but which do not 
have the effect to render the tax wholly void, the treasurer, who has distrained for 
taxes unpaid, will not be liable to an action for such irregularity, which is not his 
fault. Exchange Bank Columbus v. Hines, 3 Ohio State R.. 1. 

When it becomes necessary for the collector to levy upon and sell the goods 
and chattels of any person for the collection of taxes, it will be lawful for him to 
sell the same at any time before the time he is required to pay over the money to 
the county treasurer, and other officers mentioned in his warrant, having made a 
lew on or previous to the fifteenth of February. Shelden v. Van Buskirk, 2 Comstock 
R.,*473. But see post, p. 259, sec. 169. 



PTV. VII.] MANNER OF COLLECTION OF TAXES. 257 

Sec. 158. In case any person against whom a tax shall be Removal from 
L under the provisions of this act, shall have removed another 1 ^ 
from one town or district to another town or district in the same county, 
same county without paying such tax, it shall be lawful for 
the collector having the tax books in which such tax is 
charged, to levy and collect such tax of the goods and chattels 
of the person assessed, in any town or district within said 
county to which such person shall have removed, or from 
property of such person wherever the same may be found, in 
said county. 

Sec. 159. In levying on and selling personal property for Rules for levy . 
taxes, the collector shall be governed by the same rules, and p"jpj}l- sellin8 
be entitled to the same fees as constables are or may be for like 
services on executions; but in no case shall any collector 
charge mileage, unless he is compelled to distrain property. 

Sec. 160. In case any person against whom taxes have been Removal from 
levied, under the revenue laws of this State, in any county, connt *> etc - 
town, city or district of this State, shall have removed from 
such county, town, city or district, after such assessment has 
been made, and before the collection of the same, the county 
clerk, when directed by the county board, shall issue a war- 
rant under his hand and seal of office, directed to any sheriff, 
coroner or constable of the county, town, city or district to 
which such person may have removed, commanding such offi- 
cer to whom the warrant may be directed to make the amount 
of such tax, together with the costs and charges that may 

accrue, from the personal property of the person owing such 

\. . . . *, -, c \ j *!• lz a t. Distraint and 

tax — distraint and sale ot property under this section to be sale. 

in the same manner as provided in this act for other cases of 
distraint and sale of personal property. The taxes which may 
be collected under this section shall be disposed of in the manner 
required by this act with respect to taxes collected in any 
other manner. All other parts of this act providing for cases Failure of 
of failure of officers to pay over taxes, shall apply to all offi- officer t0 Pa- 
cers collecting taxes under this section, who fail to pay over 
and correctly account at the proper time and manner for the 
taxes collected by them. 

Sec. 161. The power to levy and collect tax shall con- Power of coi- 
tinue in the county collector after his return and final settle- a1?d°coiiect VF 
ment, until the tax is paid. If personal property of any settlement, 
person who may have been returned by the collector as being 
insolvent or having removed be afterwards found in the county, Property of 
the county clerk shall have power to issue process to the 
sheriff or any constable of his county for the collection of the 
taxes due from such person, together with the costs and charges 



258 



REVENUE. 



[DIV. 



VII- 



Taxes on part 

maybe 

received. 



Undivided 
shares. 



Receipt to be 
given. 



Contents. 



Name and P. O, 
address of 
payer. 



that may accrue; and when collected, such taxes shall be paid 
to the county collector and charged to him the same as other 
taxes are required to be charged to him by this act, and to be 
by him accounted for in like manner as such other taxes. 

Sec. 162. The collectors shall receive taxes on part of any 
lot, piece or parcel of land charged with taxes, when a partic- 
ular specification of the part is furnished. If the tax on the 
remainder of such lot or parcel of land shall remain unpaid, 
the collector shall enter such specification in his return, so 
that the part on which the tax remains unpaid may be clearly 
known, The tax may be paid on an undivided share of real 
estate. In such case the collector shall designate on his record 
upon whose undivided share the tax has been paid. 

Sec. 163. Whenever any person shall pay the taxes charged 
on any property, the collector shall enter such payment in his 
book, and give a receipt therefor, specifying for whom paid, 
the amount paid, what year paid for, and the property and 
value thereof on which the same was paid, according to its 
description in the collector's book, in whole or in part of such 
description, as the case may be, and such entry and receipt shall 
bear the genuine signature of the collector or his deputy receiving 
such payment, and whenever it shall appear that any receipt for 
the payment of taxes shall be lost or destroyed, the entry so made 
may be read in evidence in lieu thereof. The collector shall 
enter the name of the owner or of the person paying tax, 
opposite each tract or lot of land when he collects the tax 
thereon, and the post-office address of the person paying said 
tax. 



SWORN STATEMENTS OF COLLECTIONS TO BE MADE 

MENTS. 



PAY- 



laws 1873, 
Myers' ed., 
P3T. 204. 



Sworn state- 
ment to be 
made. 



Sec. 164. Town and district collectors shall, every thirty 
days when required so to do by the proper authorities of 
incorporated towns, cities and villages, road and school dis- 
tricts, for which any tax is collected, render to said authori- 
ties a statement of the amount of each kind of tax collected 
for the same, and at the same time pay over to such authori- 
ties the amount so shown to be collected. 

Sec. 165. Such town and district collectors shall, every 
thirty days, render a similar account of the taxes payable to 
the State treasury, and of the county taxes, to the county col- 
lector, and at the same time pay over the amount of such 
taxes to said county collector. 

Sec. 166. Said town and district collectors shall pay over 



DTV. 



Vn.] RETURN TO COUNTY COLLECTOR. 259 



the town, road, school and other local taxes, as may be collectors to 
directed in the warrant attached to the collector's book. SSes. ver l0Cal 

Sec. 167. Each town and district collector shall make final Final settle- 
settlement for the township, district, city, village and town ment * 
taxes, charged in the tax books, at or before the time fixed in 
this act for paying over and making final settlement for State 
and county taxes collected by them. In such settlements, 
said collectors shall be entitled to credit for the amount of 
their commissions on the amount collected, and for the amount 
uncollected, on the tax books, as may be determined by the 
settlement with the county collector. 

Sec. 168. The officer to whom any such moneys may be Duplicate re- 
paid under the preceding sections, shall deliver to the collector j;®^* 8 for mon " 
duplicate receipts therefor. 

RETURN OF TOWN AND DISTRICT COLLECTORS TO THE COUNTY 
COLLECTOR. 

Sec. 169. Town and district collectors shall return the tax Myers' e«T, 
books, and make final settlement for the amount of taxes 
placed in their hands for collection, on or before the tenth day Return, 
of March next after receiving the tax book : Provided, that proviso. 
the county collector may first notify, in writing, the several 
towns or district "collectors upon what day, within twenty days 
after the tenth day of March, they shall appear at his office 
to make final settlement. 

Sec. 170. If a town or district collector shall be unable to Fa .\ lure t ^ 
collect any tax on personal property charged in the tax book, 
by reason of the removal or insolvency of the person to whom 
such tax is charged, or on account of any error in the tax 
book, he shall, at the time of his final settlement with the 
county collector, make out and file with such collector a state- statement. 
ment, in writing, showing in detail the name of each person 
charged with such tax, the value of the property, and the 
amount of each kind of tax so charged, and the cause of delin- 
quency in each and every case, and shall make oath that the Oath, 
cause of delinquency or error stated in such statement, oppo- 
site the name of each delinquent therein named, is true and 
correct, that the sums mentioned therein remain unpaid, and 
that he has used due diligence to collect the same ; which 
affidavit shall be signed by the town or district collector.(l) 

(1) The affidavit of the town collector as to delinquent personal property, 
where the list shows the cause of inability to collect to have been insolvency or 
removal, is final, when there is no real estate. Opinion Auditor Miner, January 20, 
1868 : City of Ottawa v. Macy, 20 111. R., 423. 

If town collectors make a false affidavit, and thereby receive credit for personal 



260 



REVENUE. 



[DIV. VII. 



Credit to be 
allowed. 



Voucher. 



Abatements. 



Delinquent 
real estate list. 



Delinquent 
personal prop- 
erty. 



Failure to 
make final set- 
tlement. 



Damages. 



County 
collector to 
give satisfac- 
tion piece. 



Sec. 171. Upon the filing of said list, the county collector 
shall allow the town or district collector credit for the amount 
of taxes therein stated, and shall credit the same to the sev- 
eral funds for which said tax was charged. When the county 
collector makes settlement with the county board, such state- 
ment shall be sufficient voucher to entitle him to credit for the 
amount therein stated, less such amount thereof, if any, that 
may have been collected by him. In no case shall any town 
or district collector, or county collector, be entitled to abate- 
ments for personal property tax until the statement and affi- 
davit are filed. 

Sec. 172. Each town or district collector shall at the same 
time make out and deliver to the county collector a list of the 
real estate in his town or district, on which the taxes remain 
due and unpaid, describing the same as in tax books, giving 
the name of the person to whom listed, and the amount of 
each kind of tax charged thereon, and shall swear to the cor- 
rectness of such list, and that the taxes therein set forth 
remain due and unpaid — which affidavit shall be attached to 
such list. * 

Sec. 173. Each town or district collector shall particularly 
note in his returns to the county collector, all cases of per- 
sonal property tax that he was unable to collect, which can be 
made from real estate of the persons owing such tax. 

Sec. 174. If the town or district collector shall fail to 
appear and make final settlement, or pay over the amount in 
his hands when required in this act, the county collector shall 
forthwith cause the bond of such collector to be put in suit, 
and recovery may be had thereon for the sum due, for all 
taxes and special assessments, and twenty -five per cent, 
thereon as damages, with costs of suit. 

Sec. 175. Upon the final settlement of the amount of taxes 
directed to be collected by any collector in any of the towns 

tax due from responsible persons, they should be proceeded against. Opinion Audi- 
tor Miner. May 11, 1868. 

Town collectors can make no corrections or deductions from valuations 
made by the assessor on real or personal property. Inability to collect on account 
of removals or insolvency of the taxpayer are the only causes entitling the collector 
to a credit for the amount of such tax on personal property, in his settlement with 
the county collector. Opinion Auditor Lippincott, February 7, 1870. 

Assessment of personal property creates no lien on the property; a lien is 
created by the delivery of the collector's books. Hill et al. v. Figley, 23 111. R., 418. 
It is not thought that a collector can levy on the goods owned jointly or as a com- 
pany for the tax of individuals. The tax is a debt due from the person assessed, and 
is not discharged by the collector's return, delinquent. The board of supervisors 
have authority to cause prosecution for collection. The cause of inability to col- 
lect personal property tax must be shown in each case, and if the affidavit thereto 
is made according tolaw, the county treasurer has no discretion, but must allow 
the credit. City of OUawa v. Macy, 20 111. R., 413. The collector should be allowed 
time to complete any proceedings commenced under his warrant, before the time 
of its expiration. Opinion Auditor Lippincott, February 17, 1869 ; Opinion Auditor 
Miner, May 11, 1868. 

* Amended, see post p. 29Sa. 



MY. VII.] RETURN OF DELINQUENT ASSESSMENTS. 261 

or districts in this State, the county collector shall, if requested, 
give to such collector, or any of his securities, a satisfaction 
•H6CC in writing. 

Sec. 17(3. Such satisfaction piece may be recorded in the satisfaction 
recorder's office, and when so recorded, shall operate as a dis- Jecord?d. y be 
charge of the securities and the lien upon the property of the _ . 

„ 8 11 . r i r r i i i Limitation. 

collector, except as to all suits commenced upon such bond 
■within three years after the recording of the same. 

Sec. 177. All real estate upon which the taxes remain due Ji a ^N*la 3 * 
and unpaid on the tenth day of March annually, or at the i»sr. 204. 
time the town or district collector makes return of his books 
to the county collector, shall be deemed delinquent. 

RETURN OF DELINQUENT SPECIAL ASSESSMENTS. 

Sec. 178. When any special assessment made by any city, Laws 1873, 
town or village, pursuant to its charter, or by any corporate JK e «oif d " 

authorities, commissioners or persons, pursuant to law, remain ^- — » ' 

unpaid in whole or in part, return thereof shall be made to jj|f2^ u °n t 
the county collector on or before the tenth day of March next special assess- 
after the same shall have become payable, in like form [s] as 
returns are made for delinquent land tax. County collectors coiiector?° unty 
shall collect, account for, and pay over the same to the authori- 
ties or persons -having authority to receive the same, in like 
manner as they are required to collect, account for, and pay 
over taxes. The county collector may, upon return of delin- 
quent special assessments to him, transfer the amounts thereof 
from such returns to the tax books in his hands, setting down 
therein, opposite the respective tracts, or lots, in proper col- 
umns to be prepared for that purpose, the amounts assessed 
against such tract or lot. 

Sec. 179. When any special assessment is returned against Demand. - 
property, the taxes upon which shall have been paid to the 
town or district collector, it shall be the duty of the county 
collector to cause demand to be made for the payment of such 
special assessment, or a notice thereof to be sent by mail, r Notlce * 
otherwise, to the owner, if his place of residence is known. 
The certificate of a collector that such demand was made, or 
notice given, shall be evidence thereof. 

Sec. 180. On the application of any person to pay any tax Receipt, 
or special assessment upon any real property, it shall be the 
duty of the county collector to make out to such person a 
receipt, in which shall be noted all taxes and assessments upon contents. 
such property, returned to such collector and not previously 
paid. 



262 



REVENUE. 



[DIV. VII. 



Power of 
county- 
collector. 



Sec. 181. County collectors shall have the same power, 
and may proceed in the same manner for the collection of any 
tax on real or personal property, as is or may be given to 
town or district collectors. * 



ADVERTISEMENT FOR JUDGMENT AND SALE. 



Tliiee weeks' 
publication. 



Notice. 



taws 1873. Sec. 182. At any time after the first day of April next 

Myers' ed., „ tit j t • i J * i -\ 

ps. 204. alter such delinquent taxes and special assessments on lands 
v ~v^ ' and lots shall become due, the collector shall publish an adver- 
tu°dgment n f ° r tisement, giving notice of the intended application for judg- 
quenTiands 11 men t for sale of such delinquent lands or lots, in a newspaper 
published in his county, if any such there be, and if there be 
no such paper printed in his county, then in the nearest 
newspaper in this State to the connty seat of such county. 
Said advertisement shall be once published at least three 
cveeks previous to the term of the county court at which judg- 
ment is prayed, and shall contain a list of the delinquent 
lands and lots upon which the taxes or special assessments 
remain due and unpaid, the names of owners if known, the 
total amount due thereon, and the year or years for which the 
same are due. Said collector shall give notice that he will 

apply to the county court, at the term thereof, for 

judgment against said lands and lots for said taxes, special 
assessments, interest and costs, and for an order to sell said 
lands and lots for the satisfaction thereof; and shall also give 

notice that, on the Monday next succeeding the 

day fixed by law for the commencement of such term of the 
said county court, all the lands and lots for the sale of which 
an order shall be made, will be exposed to public sale at the 
building where the county court is held in said county, for the 
amount of taxes, special assessments, interest and cost due 
thereon; and the advertisement published according to the 
provisions of this section shall be deemed to be sufficient 
notice of the intended application for judgment and of the 
sale of lands and lots under the order of said court. Where 
the publisher of any paper that may have been selected by 
the collector shall be unable or unwilling to publish such 
advertisement, the collector shall select some other newspaper, 
having due regard to the circulation of such paper. (1) 



Place of sale. 



(1) Hie delinquent tax list is not required by law to be published in the 
paper having the largest circulation in the county, or out of it. Opinion Auditor 
Mlner, March 11, 1868. 

The publication must be made precisely as directed by law. Scammon v. City oj 
Chicago. 40 111. R.. 146. 

Application for judgment against delinquent lands, and for an order of sale. 



* Amended, see post p. 2986. 



dtv. vil] advertisement for judgment and sale. 263 



Sec. 183. When it becomes necessary to charge the tax on sale of realty 
personal property against real property, the county collector property 1 ^, 
shall select for that purpose some particular tract or lots of 
real property owned by the person owing such personal prop- 
erty tax ; and in his advertisement for judgment and sale, 
shall designate the particular tract of lots of real property 
against which such personal property tax is charged, and in 
the list filed for judgment, the same facts shall be shown, and 
the court shall take cognizance thereof, and give judgment 
against such tract or lots of real property, for such personal 
property tax. 

Sec. 184. In all advertisements for the sale of lands and Letters and 
lots for taxes or special assessments, and in entries required uf^ n ™dver? 
to be made by the clerk of the court or other officer, letters, tisement. 
figures and characters may be used to denote townships, 
ranges, sections, parts of sections, lots or blocks, or parts 
thereof, the year or the years for which the taxes were due, 
and the amount of taxes, special assessments, interest and 

may be made to the county court at the June term. The collector is not compelled 
to make it at the May term. The People ex rel. v. Nichols, 49 111. R., 517. 

A notice which omits to state that an order for sale will be applied for when the 
application for judgment is made, is insufficient and subsequent proceedings are 
void. Charles v. Wuugh, 35 111. R., 315. 

The statute form,' of advertisement must be strictly followed. The omis- 
sion of the title of the collector after his name signed thereto, was held to be 
fatal. Spear v. Ditty,'*! Vt. R., 282. Where ;the notice was for " repairing and build- 
ing bridges," and the tax authorized was for making and repairing roads and build- 
ing bridges, it was held insufficient, diaries v. Waugh, 35 111. R.. 315. 

It is not necessary to specify in detail the several classes of tax in the advertise- 
ments of delinquent lands ; this, however, does not apply to the list to be filed with 
the clerk, or the record for judgment, but to the advertisement only. Opinion Audi- 
tor Miner, March 2, 1867. 

To give the court jurisdiction it is not necessary that the collector's notice 
should specify the first day of the term of the court to which application is made, 
and by authority of section 26 of this act, a discretion is given to the collector to 
select the term of court at which he will make application for judgment, Parks 
et at. v. Miller, Ireasurer, etc., 48 111. R., 360. 

The law contemplates a pertinent description of the land in the advertise- 
ment of sale. It should be so described that the owner may know that the tax on 
his land is unpaid, and that purchasers may know the precise land intended. A 
description as 485 acres of a certain tract named, without location, is insufficient. A 
description as 150 acres, part of section 36, northwest corner, is too indefinite and 
defective. A description as 60 acres, part of the north half of sec. 13, is too vague and 
uncertain. A description as % of block 4, in, etc., is void for uncertainty. A 
description as let 11, block 20, Roberts & Randall's addition, with no other descrip- 
tion, except that the notice was headed "Auditor's Office, Ramsay County, Minn., 
St. Paul, December 8, 1862," is insufficient. A sale by such descriptions would con- 
fer no title. Douglas v. Dangerfield, 10 Ohio R., 152; Stewart v. Aten, 5 Ohio R., 257 ; 
Lafferly v. Byers, 5 Ohio R., 558 ; 2 id., 287; 3 id., 272 ; Treon v. Emerick, 6 Ohio R., 391(; 
Burchard v. Hubbard, 11 Ohio R., 316 ; Bidwell v. Coleman, 11 Minn. R., 78 ; Bidwell v. 
Webb, 10 Minn. R., 59. 

The county collector has no authority to advertise delinquent lands in subdivi- 
sions different from the assessment. Citing Blackwell on Tax Titles, 330. Opinion 
Attorney General Cole, vol. 1, p. 392. 

Where a lot of land is listed for taxation, together with eight others, and so adver- 
tised for sale, but the assessment of tax is of one aggregate sum on all, a separate 
sale and conveyance of them is unlawful and confers no title. Wiley v. Scoville, 9 
Ohio R.. 43. 

A certificate of publication stating that " the foregoing was duly published 
in the Peoria Democratic Press." etc., immediately following the tax list, will be 
held to refer to such tax list, and it will be presumed that the paper was a news- 
paper. Jackson v. Cummings, 15 111. R., 451. 



264 



REVENUE. 



[DIV. VII. 



Proviso. 



Myers ed., 
pg. 304. 



when made 



costs ; and the whole of the advertisement shall be contained 
in one edition of such newspaper and its supplement, if such 
supplement is necessary : Provided, that nothing contained 
in this section shall prevent the county collector from subse- 
quently advertising and obtaining judgment on lands or lots 
that may have been omitted through no fault of the collector, 
or that may have been erroneously advertised or described in 
the first advertisement. 

Sec. 185. All applications for judgment and order of sale 
for taxes and special assessments on delinquent lands and lots, 
' v ' shall be made at the May term of the county court. ,If, from 

4dRment 011 f ° r an y cause ? tne court shall not be holden at the term at which 
judgment is prayed, the cause shall stand continued ; and it 
shall not be necessary to re -advertise the list or notice 
required by law to be advertised, before judgment and sale, 
but at the next regular term thereafter the court shall hear 
and determine the matter; and if judgment is rendered, the 
sale shall be made on the Monday specified in the notice, 
as provided in section one hundred and eighty -two — such 
Monday to be fixed by the county collector in the notice. If, 
for any cause, the collector is prevented from advertising and 
obtaining judgment at said term, it shall be held to be legal to 
obtain judgment at any subsequent term of said court ; but 
if the failure arises by the ccunty collector's not complying 
Avith any of the requirements of this act, he shall be held on his 
official bond, for the full amount of all taxes and special assess- 
ments charged against him : Provided, that any such failure 
on the part of the county collector shall not be allowed as a 
valid objection to the collection of any tax or assessment, or 
to a rendition of judgment against any delinquent lands and 
lots, included in the application of the county collector : And 
provided, further, that on the application for judgment, at 
such subsequent term, it shall not be deemed necessary to set 
forth or establish the reason of such failure. 

Sec. 186. The printer, publisher, or financial officer or 
agent of the newspaper publishing the list of delinquent lands 

fourcop\es e to u and lots -shall transmit, by mail or other safe conveyance, to 

collector. tne co iiector, four copies of the paper containing said list, to 
one of which copies he shall attach his certificate, under oath, 
of the due publication of the delinquent list for the time 
required by law (which copy shall be presented by the collector 
to the county court at the time judgment is prayed), and said 
copy shall be filed as part of the records of said court. Upon 
receipt of said papers, and on demand being made, the col- 

whenpaid? s_ lector shall pay to the printer the amount of the fees allowed 



Proviso. 



Further pro- 
viso. 



Publisher of 
delinquent 
lists shall send 



DIY. VII.] ADVERTISEMENT FOR JUDGMENT AND SALE. 265 

by law for publishing said list and notice; and it shall be his 
duty to file one copy of said paper in his office, and deliver 
one copy to the auditor, and one copy to the State treasurer, 
who shall file and safely preserve them in their respective 
offices, 

.187. In all cases where there is an error in the adver- Error in adver- 
Used list, the fault thereof being the printer's, which prevents tlsed llst " 
judgment from being obtained against any tracts or lots, or 
t all of said delinquent list, at the time stated in the 
advertisement that judgment will be applied for, the printer 
shall lose the compensation allowed by this act, for such, erro- 
neous tracts or lots, or entire list, as the case may be. 

Sec. 188. The collector shall file with the county clerk the collector to file 
list of delinquent lands and lots, which shall be made out inqu^^^ 
numerical order, and contain all the information necessary to 
be recorded at least five days before the commencement of the 
term at which application for judgment is to be made, and 
said clerk shall receive and record the same in a book to be 
kept for that purpose ; which said book shall set forth the 
name of the owner, if known, the proper description of the 
land or lot, the year or years for which the tax or special 
assessment is due, the valuation upon which the tax is 
extended, the amount of each kind of tax or special assess- 
ments, the costs and total amount charged against such land 
or lot. 

Sec. 189. Any person owning or claiming lands or lots claimant of 
advertised for sale, as provided in this act, may, in person or J fnds. tlsed 
by agent, pay the taxes, special assessments, interest and costs 
due thereon to the county collector of the county in which 
the same are situated, at any time before sale. 

Sec. 190. On the first day of the term at which judgment Report of 
on delinquent lands and lots is prayed, it shall be the duty of delin( i uent list - 
the collector to report to the clerk all the lands or lots, as the 
case may be, upon which taxes and special assessments have 
been paid, if any, from the filing of the list mentioned in the 
foregoing section up to that time ; and the clerk shall note the 
fact in the book in which the clerk has recorded the list oppo- 
site each tract upon which such payments have been made. 
The collector, assisted by the clerk, shall compare and correct 
said list, and shall make and subscribe an affidavit, which shall 
be, as nearly as may be, in the following form : 

I, , collector of the county of , do hereby solemnly Form of 

swear [or affirm, as tJie case may be] that the foregoing is a true and affidavit, 
correct record of the delinquent lands and lots within the county of 
, upon which I have been unable to collect the taxes, {and 



266 



REVENUE. 



[DIV. VII. 



special assessments, interest and printers' fees, if any,) charged thereon, 
as required by law, for the year or years therein set forth; that said 
taxes now remain due and unpaid, as I verily believe. 

Said affidavit shall be entered on the repord at the end of 
the list, and signed by the collector.(l) 

JUDGMENT. 



Laws 1873, 
Myers" ed., 
1»S. 204. 



Objections to 
judgment. 



Judgmnet. 



Sec. 191. The court shall examine said list, and if defense 
(specifying, in writing, the particular cause of objection) be 
offered by any person interested in any of said lands or lots, 
to the entry of judgment against the same, the court shall 
hear and determine the matter in a summary manner, without 
pleadings, and shall pronounce judgment as the right of the 
case may be. The court shall give judgment for such taxes and 
special assessments and penalties as shall appear to be due, 
and such judgment shall be considered as a several judgment 
against each tract or lot , or part of a tract or lot, for each bind 
of tax or special assessment included therein ; and the court 
shall direct the clerk to make out and enter an order for the 
sale of such real property against which judgment is given, 
which shall be substantially in the following form: (2) 

(1) A return or report by the collector of taxes before the sitting of the court to 
which it is by law directed to be made, will be good. Jackson v. Camming*, 15 111. 
R.,450. 

The provision requiring ' the affidavit of the collector to be entered at the bot- 
tom of the record, would probably be answered if entered in the record, although not 
exactly or technically at the bottom. Winder v. Sterling, 7 Ohio R., 2 post 190. 

(2) A Judfftftent for tacres, which fails to shore the amount of taxes for which 
it is rendered, is fatally defective. The use of numerals, without some mark or 
word indicating for what they stand, is insufficient, and cannot be explained by 
referringyto other judgments entered in a corresponding manner at different times. 
Lane x.bvmmdmann. 21 111. R., 143; Elston et al. v. Kennicott et al., 46 111, R„ 189; 
dickering et al v. Failes et al.. 38 111. R., 342. 

Where a precept and judgment is referred to, to sustain a tax sale, the amount 
should definitely appear in the judgment. An error in the precept might be cor- 
rected; but uncertainty as to judgment is fatal. If the judgment is for different 
taxes, there should be certainty as to each, Eppinger v. Kirby et ux., 23 111. R., 521. 

A specific or general judgment for cost in a suit for taxes, as in ordinary cases, is 
good. Jackson v. Cummings, 15 111. R., 452; Jferritt et al. v. Thompson, 13111. R.. 727. 

Judgment can be rendered only for the amount specified in the collector's notice, 
The People ex rel. v. Nichols, 49 111. R., 517. 

The want of the dollar mark in the assessment roH. to designate the amount 
of the valuation or the taxes, will not render the assessment or the collectors war- 
rant invalid and illegal. Elston et al. v. Kennicott et al.. 46 111. R., 189. 

A judgment cannot be rendered for taxes, a part of which are shown bv the record 
to be illegal. Campbell et al. v. Peoper, 41 111. R.. 454. 

Where material omissions occurred in the record of a judgment, a correction at a 
subsequent term of the court was sustained. Alkiiis v. Kinman, 2 Gilm. R.. 450. 

A judgment rendered on a day prior to that named in the collector's notice, or 
where the report of the collector does not complv with the law, is void. Pickett v. 
Hartsock, 15 111. R., 282. 

The county court has jurisdiction to render judr/ment against delinquent 
lands, for taxes, at any regular term after April in each year. The statute has not 
limited the rendition of judgment to the first Monday of May ; nor does it, in terms, 
require that it shall be at that or any particular term. Stihvell et al. v. People, 49 111. 
R., 45; Opinion Auditor Mixer, January 20. 1867. 

Where ajiplieation icas made for judgment at the June term of the county 
court, and the court refused to enter judgment because the list had not been filed 
five days, and a new application was made to the„next August term- Held, that the 



DIV. VII.] JUDGMENT. 267 

Whereas duo notice has been <:ivon of the intended application p orm f order 
for a judgment against said lands and lots, and no sufficient defense for sole. 
having been made, or cause shown why judgment should not be 
entered against said lands and lots, for the taxes ( special assess- 
ments, if any), interest, penalties and costs due and unpaid thereon 
for the year or years herein set forth, therefore it is considered by 
the court that judgment be and is hereby entered against the afore- 
said tract or tracts, or lots of land, or parts of tracts or lots, as the 
case may be, in favor of the People of the State of Illinois, for the 
sum annexed to each, being the amount of taxes (and special assess- 
ments, if any), interest, penalties and costs due severally thereon; 
and it is ordered by the court that the said several tracts or lots of 
land, or so much of each of them as shall be sufficient to satisfy the 
amount of taxes (and special assessments, if any), interest, penalties 
and costs due severally thereon ; and it is ordered by the court that 
the said several tracts or lots of land, or so much of each of them as 
shall be sufficient to satisfy the amount of taxes (and special assess- 
ments, if any), interest, penalties and costs annexed to them sev- 
erally, be sold as the law directs. 

Said order shall be signed by the judge. In all judicial order signed 
proceedings of any kind, for the collection of taxes and by ^ udge " 
special assessments, all amendments may be made which, by 
law. could be made in any personal action pending in such 
court, and no assessment of property or charge for any of 
said taxes shall be considered illegal on account of any irreg- irregularities 
ularity in the tax lists or assessment rolls, or on account of in llsts or rolli 
the assessment rolls or tax lists not having been made, com- 
pleted or returned within the time required by law, or on 
account of the property having been charged or listed in the 
assessment or tax list without name, or in any other name 
than that of the rightful owner ; and no error or informality 
in the proceedings of any of the officers connected with the 
assessment, levying or collecting of the taxes, not affecting 
the substantial justice of the tax itself, shall vitiate, or in any 
manner affect the tax, or the assessment thereof; and any 
irregularity or informality in the assessment rolls or tax lists, 
or in any of the proceedings connected with the assessment or 
levy of such taxes, or any omission or defective act of any 
officer or officers connected w r ith the assessment or levying of 
such taxes, may be in the discretion of the court corrected, 
supplied and made to conform to law by the court, or by the 
person (in the presence of the court) from whose neglect or 
default the same was occasioned. 

refusal at the June term, not having heen on the merits, formed no har to rendering 
a judgment on the second application. Stilwell d al. v. People, 49 111. R., 45. 

There may be considerable doubt whether the county court has any right to go 
behind the list compared and corrected by the collector and clerk, unless some per- 
son interested in the lands included therein, appears and objects to the entry of 
judgment. Unless such is the case, the court is not required to determine whether 
the antecedent proceedings are regular. Opinion Auditor Lippincott, November 
12, 1869. An appearance in such a case does not have the effect to waive a material 
defect in the proceedings. The People ex rel. v. Nichols, 49 111. R., 517. 



268 REVENUE. [DIV. VII. 

Appeals. Sec. 192. Appeals from the judgment of the court may be 

taken during the same term to the circuit court of the county 
Bond. on the party praying the appeal executing a bond to the peo- 

ple of the State of Illinois, with two or more sureties, to be 
approved by the court, in double the amount of the judgment, 
conditioned that the appellant will prosecute his said appeal 
with effect, and will pay the amount of any tax, assessment 
and costs, which the circuit court on the trial of the appeal 
may render against any real estate embraced in such appeal. 
mayappwSf 4 -^ ne count y board or proper authorities of any city, village or 
town, or other authority or person to whom any tax or assess- 
ment is payable, may, in like case, appeal to the circuit court 
without giving bond.* 
judgment Sec. 193. If judgment shall be rendered against any par- 

on a appeai ndS ticular lot, piece, parcel or tract of land embraced in such 
Dut - t ir it a PP ea ^j ^ shall be the duty of the clerk of said circuit court, 
clerk. in all cases of appeal, to make and deliver to the county clerk 

a record of the lands and lots against which judgment is ren- 
dered, substantially as is provided for county clerks in section 
one hundred and ninety-four of this act ; which record, when 
Process for sale filed m the office of said county clerk, shall be the process on 
which such real estate, or any interest therein, shall be sold 
for such taxes or assessments, as well as the record for the sale 
thereof, and it shall be the duty of the county collector, 
assisted by the county clerk, to proceed and sell the same, for 
the amount of such judgment and costs, in the manner provi- 
ded where judgment is rendered by the county court against 
Notice of sale, delinquent real estate. The collector shall publish a general 
notice of such sale, in a newspaper published in his county, if 
any such there be ; and if there be no such paper published in 
his county, then in the nearest newspaper published in the 
state to the- county seat of such county — said notice to be so 
published once in such newspaper at least three weeks previous 
Dismissal of to tne ^ a y nxe ^ for such sale. Upon the dismissal of any 
appeal. appeal, and upon filing in the office of the county clerk a cer- 

tified copy of the order of such dismissal, the county clerk 
shall make a record of the lands and real estate embraced in 
the appeal, which shall be the process on which such real estate 
embraced in such appeal shall be sold ; and it shall be the 
duty of the county collector to proceed to sell the same in the 
manner provided hereinbefore in cases of judgment being ren- 
dered against real estate by the circuit court on the trial of an 
appeal, and all the provisions of law shall apply to such sale, 
as in other cases. 

^Amended, see post pp. 298c, 2<J3d. 



DIV. VII ] SALE OF DELINQUENT LANDS. 269 

SALE OF DELINQUENT LANDS. 

Sec. 194. The county clerk shall, before the day of sale, saieof 
make a record of the lands and lots against which judgment i d a C nds? uem 
is rendered, which shall set forth the name of the owner, if 
known, the description of the property, the total amount of 
judgment on each tract or lot, and the year or years for which 
the same is due, in the same descriptive order as said property 
may be set forth in the judgment book, and shall attach thereto 
a copy of the order of the court, and his certificate that such 
record is correct. Said record, so attested, shall be the pro- Record as 
cess on which all real property, or any interest therein, shall process - 
be sold for taxes or special assessments, as well as the record 
for the sale of such property. (1) 

Sec. 195. On the day advertised for sale, the collector shall Report of taxes 
report to the county clerk a list of all lands and lots upon judgment 
which taxes and special assessments have been paid after the 
rendition of judgment ; and said clerk shall note the fact of 
such payment opposite such tracts or lots upon the record 
aforesaid. (2) 

Sec. 196. The county clerk, in person or by deputy, shall county clerk to 
attend all sales of real estate for taxes, made by the collector, attendsales - 
and shall assist at the same. 

Sec. 197. When any tract or lot shall be sold, it shall be Entry of sale. 
the duty of the clerk to enter on the record aforesaid, the 
quantity sold and the name of the purchaser, opposite such 
tract or lot, in the blank columns provided for that purpose ; 
and when any such property shall be redeemed from sale, the Redemption. 
clerk shall enter the name of the person redeeming, the date, 
and amount of redemption, in the proper column. 

Sec. 198. The book for such record shall be furnished at ^ e r c n ^book 
the expense of the county, and be so ruled that there shall be county, 
suitable blank columns for entering the quantity or portion of 
each tract or lot that may be sold, the name of the purchaser, 
and such other columns as may be deemed necessary. 

(1) TT>e precept or certified copy of judgment on which sale is made for non- 
payment of taxes, is not process in the strict sense of the word, and need not run in 
the name of the people. Curry v. Hinman, 11 111. R. 424 : Scarritl v. Chapman, 11 111. 
R., 414. 

The notice of application for judgment and sale stands as process, and must be 
regular in all respects. Scammon v. City of Chicago, 40 111. R., 146. 

The county court has authority to render judgment for taxes without the presence 
of the two county justices. Under const. 1848. Parks el al. v. Miller, etc., 48 111. R., 360. 

(2) Where the report of the collector simply shows the total amount of taxes due, 
without specifying whether the delinquent tax was due to the state or county, such 
error Is fatal, and the purchaser at the tax sale can acquire no title. Fox v. Turtle, 
55 111., 377. 



270 



REVENUE. 



[l>IV. VII. 



forfeited 
property. 

" Sale and 

redemption 

record." 



Collector to 
attend sale of 
real estate. 



Time of sale. 



Purchaser - 
part sold. 



Sec. 199. All tracts or lots forfeited to the State at such 
sale, as hereinafter provided, shall be noted on said record. 

Sec. 200. Said book shall be known and designated as the 
" Sale and Redemption Record," and be kept in the office of 
the county clerk. 

Sec. 201. The collector, in person or by deputy, shall 
attend at the court house in his county, on the day specified 
in the notice for the sale of real estate for taxes, and then and 
there, between the hours of ten o'clock in the forenoon and 
four in the afternoon, proceed to offer for sale, separately, and 
in consecutive order, each tract of land or town or city lot in 
the said list on which the taxes, the special assessments, inter- 
est or costs have not been paid. The sale shall be continued 
from day to day, until all the tracts or lots in the delinquent 
list shall be sold or offered for sale.(l) 

Sec. 202. The person at such sale offering to pay the 
amount due on each tract or lot, for the least quantity thereof, 



(1) It is the duty of the collector at tax sale to offer the tracts and lots sepa- 
rately, and to collect the taxes at the least possible loss to the owner. To allow a 
person to select from the list a portion of. the delinquent lands, and become the 
purchaser of the whole for the tax due, without competition, is fraudulent. Brown 
et al. v. Hogle et al., 30 111. R., 120. 

In the sale of lands for taxes, the law must be strictly pursued in all its material 
requirements, or the sale will be invalid. Lane v. BommelMann, 21 111. R., 143; 
Holbrook v. Dickinson, 46 id., 285. 

Where the law authorizing a tax is unconstitutional, a tax sale under it is void, 
and the case will be treated as if no assessment had ever been made. Holbrook v. 
Dickinson, 46 111. R., 285 ; Springer v. RosseUer et al., 47 id., 223. 

A valid tax sale, after a deed is acquired, passes a new and perfect title to the 
purchaser. It is superior in its nature to title under an ordinary sheriff's deed. 
Atkins v. Hinman, 2 Gilm. R., 449. 

It is fraud for a tenant in common to permit lands held in common to be sold for 
taxes, and become himself the purchaser. Brown et al. v. Hogle et al., 30 Iil.R., 119. 

When a tax sale is not legally conducted, it works no forfeiture to the owner, and 
no rights are acquired. Conway v. Cable et al., 37 111. R., 82. 

The omission of essential acts in conducting a tax sale cannot be cured by 
legislative enactments so as to render the sale valid. And where the officers con- 
ducting the sale agree with the purchaser to receive a part only of the amount* of 
taxes due, the agreement is illegal. Conway v. Cable etal., 37 111. R., 82. 

Lands must be sold as listed. If a block of town lots are listed as one block, 
they must be sold in a body and redeemed in a body ; but in a case of a large num- 
ber of town lots, held for purposes of speculation, the owner may not be able to 
redeem all, or for special reasons may desire to redeem a part. In summary 
proceedings this right is preserved to the owner. Opinion Attorney General Cole, 
(Minn.) vol. 1, p. 400. 

A purchaser at a sale, having an interest in the land as heir, acquires no 
additional title ; nor does a person claiming title to land which is listed in his name, 
acquire any greater interest by permitting it to be sold for taxes and becoming the 
purchaser. Choteau v. Jones et al., 11 111. R., 322. Nor can a mortgagor, by such an 
act, defeat the lien of the mortgage. The purchase by him at tax sale will be 
regarded as payment of taxes. Frye v. Bank of Illinois, 11 111. R., 383 ; Moore v. 
Titman, 44 id., 367. 

An agent for the payment of taxes on lands, who allows them to be sold, and 
becomes the purchaser, will hold the lands as trustee for his principal. Burton ei 
al. v. Moss, 32 111. R., 50. 

A person having an agreement for the conveyance of certain lands, in which 
he is obliged to pay the taxes, acquires no title by allowing them to be sold and 
becoming the purchaser. The act will be regarded as mere payment of taxes. 
Oliver et al. v. Croswell, 42 111. R.. 42. 

The purchaser at a sale of a portion of a lot is entitled to have such fraction 
listed and assessed separately, so that he may pay the taxes thereon. Bobyy. City 
of Chicago, 48 111. R., 130. 



DTY. VII.] SALE OF DELINQUENT LANDS. 271 

shall be the purchaser of such quantity, which shall be taken 
from the east side of such tract or lot. 

Sec. 203. Every tract or lot so offered at public sale, and Forfeited to 
not sold for want of bidders, shall be forfeited to the State of state ' 
Illinois. 

Sec. 204. If any collector, by himself or deputy, shall fail to Failure of dep- 
attend any sale of lands or lots advertised according to the pro- JJf j^ t0 attend 
visions of this act, and make sale thereof as required by law, he 
shall be liable to pay the amount of taxes, special assessments Liability, 
and costs due upon the lands or lots so advertised. Said col- 
lector may afterwards advertise and sell such delinquent prop- 
erty to reimburse himself for the amount advanced by him ; 
but at no such sale shall there be any property forfeited to 
the State. 

Sec. 205. If any county clerk shall fail to attend any tax Failure of 
sale of real estate, either in person or by deputy, or to make attentate!* t0 
and keep the record, as required by this act, he shall forfeit 
and pay the sum of five hundred dollars, and shall be liable to 
indictment for such failure, and upon conviction shall be 
removed from office. Said sum shall be sued for in an action penalty— how 
of debt, in the name of the People of the State of Illinois, recovered, 
and when recovered shall be paid into the county treasury. 

Sec. 206. The person purchasing any tract or lot, or any Purchaser t0 
part thereof, shall forthwith pay to the collector the amount P a y forthwith, 
charged on such tract or lot, and on failure so to do, the said 
tract or lot shall be again offered for sale in the same manner 
as if no such sale had been made ; and in no case shall the 
sale be closed u>ntil payment is made, or the tract or lot again 
offered for sale. 

Sec. 207. The county clerk, on being requested so to do, shall county clerk 
make out and deliver to the purchaser of any lands or lots tiffcate 1 of pur. 
sold as aforesaid, a certificate of purchase, to be countersigned chase - 
by the collector, describing the land or lot sold as the same 
was described in the delinquent list, date of such sale, the 
amount of taxes, special assessments, interest and costs for 
which the same was sold, and that payment has been made 
therefor. If any person shall become the purchaser of more 
than one tract or lot, he may have the whole or one or more 
of them, included in one certificate. Such certificate of pur- certificate 
chase shall be assignable by indorsement, and an assignment ^ggnawe by 
thereof shall vest in the assignee, or his legal representatives, 
all the right and title of the original purchaser. 

Sec. 208. The county clerk is hereby authorized to make index to tax 
an index to tax sale records in a book, when furnished by the sales * 
county — which index shall be kept in the county clerk's office 
18 



272 



REVENUE. 



[DIV. VII. 



as a public record, open to the inspection of all persons dur- 
ing office hours. 

CERTIFIED COPY OF SALE LISTS TO BE SENT TO AUDITOR. 

Transcript of Sec. 209. The county clerk shall, within twenty days after 
sales. an y ga | e f or taxes, make out and transmit to the auditor a 

transcript of sale for taxes, which shall be written on foolscap 
paper, made up and stitched in book form, suitable for bind- 
ing. The clerk shall certify to the correctness of said tran- 
script, under the seal of his office. Said list shall not include 
Failure to fur- any tracts of lots forfeited to the State at such sale. The 
uis —penalty. count y c l e rk, for failure to make out, furnish or forward said 
list, as herein required, shall forfeit and pay into the State 
treasury the sum of five hundred dollars, to be recovered in 
an action of debt, in the name of the People of the State of 
Illinois, in any court in this State having competent jurisdic- 
tion. 



Limitation 
term. 



Subsequent 
taxes. 



REDEMPTION. 

Sec. 210. Real property sold under the provisions of this 
act may be redeemed at any time before the expiration of two 
years from the date of sale, by payment in legal money of 
the United States, to the county clerk of the proper county, 
the amount for which the same was sold, and twenty-five per 
cent, thereon if redeemed at any time before the expiration 
of six months from the day of sale ; if between six and 
twelve months, fifty per cent. ; if between twelve and eighteen 
months, seventy -five per cent.; and if between eighteen 
months and two years, one hundred per cent, on the amount 
for which the same was sold. The person redeeming shall 
also pay the amount of all taxes and special assessments 
accruing after such sale, with ten per cent, interest thereon, 
from the day of payment, unless such subsequent tax or 
special assessment has been paid by or on behalf of the per- 
son for whose benefit the redemption is made, and not by the 
purchaser at the tax sale, or his assignee. If the real prop- 
erty of any minor, heir, idiot or insane person be sold for non - 
payment of taxes or special assessments, the same may be 
redeemed at any time after sale and before the expiration of 
Persons under one Year a ^ ter sucn disability he removed, upon the terms 
specified in this section, and the payment of ten per cent., per 
annum, on double the amount for which the same was sold, 
from and after the expiration of two years from the date of 
sale ; which redemption may be made by themselves, or by 



disability 
when to re 
deem. 



common. 



PTV. VIl.j REDEMPTION. 273 

anv person in their behalf. Tenants in common or joint ten- joint tenants 

ants shall be allowed to redeem their individual interest in ™**™ uts in 

real property sold under the provisions of this act, in the 

same manner and under the terms specified in this section for 

the redemption of other real property. Any redemption 

made shall inure to the benefit of the person having the legal 

or equitable title to the property redeemed, subject to the 

right of the person making the same to be reimbursed by the 

person benefited. (1) 

Sec. 211. If any purchaser of real estate, sold for taxes or Land re-soid 
special assessment, shall suffer the same to be again sold for last^ayof 6 ° re 
taxes or special assessments before the expiration of the last day ^le nd anuuai 
of the second annual sale thereafter, such purchaser shall not be 
entitled to a deed for such real property until the expiration of 
a like term from the date of the second sale, during which time 
the land shall be subject to redemption upon the terms and con- 
ditions prescribed in this act, but the person redeeming shall cnly 
be required to pay, for the use of such first purchaser, the amount 
paid by him. The second purchaser shall be entitled to the 
redemption money, as provided for in the preceding section. 

Sec. 212. The books and records belonging to the office of Books and 
the county clerk, or copies thereof, certified by said clerk, shall T fack%-(dence. 
be deemed prima facie evidence to prove the sale cf any land or 
lot for taxes or special assessments, the redemption of the same, 
or payment of taxes or special assessments thereon. The 
county clerk shall, at [the] expiration of his term of office, pay 
over to his successor in office all moneys in his hands received 
for redemption from sale for taxes on real estate. 

(1"> On paying redemption money it is deemed absolutely necessary for the clerk 
to require the surrender of the certificate as a condition precedent to paying over 
the money. Or. in lieu of the certificate, satisfactory proof by affidavit of the loss or 
destruction thereof, without transfer or assignment. Opinion Auditor Miner, May 
29. 1868. 

When, under claim and color of title all the taxes legally assessed are paid for 
the full period of limitation a bar is created to the redemption of any portion of 
the property. Chickering et al. v. Failcs ex rel. et al., 38 111. R., 342. 

The provisions of the limitation act of 18o9 empowering minors to redeem land 
sold for taxes, within three years after attaining their majority, by paying to the 
person who has paid the tax. the amount with interest, do not take from them the 
right to redeem within one year after his majority, by paying double the amount, 
etc., to the collector. HoUoivay et al. v. Clark, '11 111. R., 488. 

In the redemption of land belonging to infants, if the clerk has failed to file 
the affidavit by which the right to redeem was established, the right to redeem may 
be shown if the validitv of the redemption is questioned. Chapin v. Cortenius cl al., 
15 I1J. R.. 432. 

Under the revenue law of 1845 lands sold for taxes were redeemable, within 
two years by the payment of double the amount for which they were sold, all taxes 
aecnh'nfi after such sale, with six per cent, interest on such paid taxes, if any were 
paid, from the first day of May in each year up to the time of payment. The" act of 
1853, amendatory thereof, changes the rate of interest from six to ten per cent., but 
fixes no certain day from which it shall be computed, except that it shall be from the 
day of sale, whenever that may be. The "day of sale" here alluded to is the day 
on which a sale might take place in each year, if the subsequent taxes were not 
paid, and not the day of the first sale under which the tax purchaser claims. If 
the purchaser pays no subsequent taxes he can claim no interest. Coimlock v. Cover, 
35 111. R., 470. 



274 REVENUE. [DIV. VII. 

Tracts sold Sec. 213. Whenever it shall be made to appear, to the satis- 

erroneousiy. faction of the county clerk, that any tract or lot was sold which 
was not subject to be taxed, or upon which taxes or special 
assessments had been paid previous to the sale, he shall make 
an entry opposite to such tracts or lots in the sale and redemp- 
tion record that the same was erroneously sold, and such entry 
shall be prima facie evidence of the fact therein stated, 
purchaser at Sec. 214. When the purchaser at such erroneous sale, or 
recovSaiSunt an y one holding under him, shall have paid any tax or special 
tax. assessment upon the property so sold, which has not been paid 

by the owner of [the property, he shall have the right to re- 
cover from such owner the amount he has so paid, with ten per 
cent, interest, as money paid for the owner's use. 
Receipt of Sec. 215. The receipt of the redemption money of any tract 

monej^operates °^ l ano - or 1°*> ^V any purchaser, or the return of the certificate 
as release. f purchase for cancelation, shall operate as a release of all the 
claim to such tract or lot, under or by virtue of the purchase. 

TAX DEEDS. 

Tax deeds. Sec. 216. Hereafter, no purchaser or assignee of such pur- 

chaser of any land, town or city lot, at any sale of lands or lots 
for taxes or special assessments due, either to the State or any 
county or corporated town or city within the same, or at any 
sale for taxes or levies authorized by the laws of this State, shall 
be entitled to a deed for the lands or lots so purchased, until 

when the following conditions have been complied with, to wit : Such 

purchaser la , ° . , ,, r , 7 -, 

entitled to a purchaser or assignee snail serve, or cause to be served, a writ- 
deed# ten or printed, or partly written and partly printed notice of 

such purchase on every person in actual possession or occupancy 
of such land or lot, and also the person in whose name the 
same was taxed or specially assessed, if, upon diligent inquiry, 
How to proceed ^ e can ^ Q f oun( j j n t h e county, at least three months before 
the expiration of the time of redemption on such sale, in which 
notice he shall state when he purchased the land or lot, in 
whose name taxed, the description of the land or lot he has 
purchased, for what year taxed or specially assessed, and when 
the time of redemption will expire. If no person is in actual 
possession or occupancy of such land or lot, and the person in 
whose name the same was taxed or specially assessed, upon 
diligent inquiry, cannot be found in the county, then such 
person or his assignee shall publish such notice in some news- 
paper printed in such county, and if no newspaper is printed 
in the county, then in the nearest newspaper that is published 
in this State to the county seat of the county in which such land 



PIV. VII.] TAX DEEDS. 275 

or lot is situated ; which notice shall be inserted three times, 
the first time not more than five months, and the last time not 
than three mouths before the time of redemption shall 
cxpire.(l) 

SEC. 217. Every such purcnaser or assignee, by himself or purchaser or 
agent, shall, before he shall be entitled to a deed, make an ^fe affidavit 
affidavit of his having complied with the conditions of the fordeed - 
foregoing section, stating particularly the facts relied on as 
such compliance, which affidavit shall be delivered to the per- 
son authorized by law to execute such tax deed, and which 
shall by him be filed with the officer having custody of the 
record of the lands and lots sold for taxes and entries of 
redemption in the county where such lands or lots shall lie, to 
be by such officer entered on the records of his office, and 
carefully preserved among the files of his office, and which 

i .1 fMtrcJUtaef of land at taxsale is not entitled toadeed until the lapse of two 
a deed given before that time is not notice to the grantee of the purchaser, of 
the illegality. A tax deed maybe good as color of title, although not so as per- 
manent title. Bowman v. Wetting, 39 111. R., 418. 

A tax title is purely technical, as contradistinguished from a meritorious title, 
and depends for its validity upon a strict compliance with the statute : and any 
omission, as the seal of the officer making it, will not be corrected by a court of 
chancery. Altes v. Hoicklce et al., 36 111. R., 265. 

A tax deed is sufficient to show claim and color of title, if it appears on its face to be 
regular. The person relying upon it for that purpose is not bound to show that the 
pre - requisites of the statute have been complied with. Holloway et al. v. Clark, 27 111. 
R., 486. 

If an officer executes a deed for land under a sale for taxes, without notice having 
been given to the person in whose name the land was taxed, by personal service 
thereof if be resides in the county, or, if not, then by publication, informing him of 
the time of the sale, and when the time for redemption will expire, such deed will be 
inoperative to convey a title. And proof that such notice has been given is essential 
to the admissibility of a tax deed m evidence. Holbrook v. Fellows, 3S 111. R., 440. 

In an action of ejectment, where the plaintiff relied upon a tax deed, the defend- 
ant sought to prove that the taxes, for the alleged non-payment of which the land 
had been sold", had been paid before the sale, and offered a receipt for such taxes 
from the collector for "teety- seven dollars." The receipt also comained a column 
headed " total tax," which footed up, in figures, S27. This was sufficient as explaining; 
what "teety-seven dollars" meant. Danielsx. Burso, 40 111. R., 307. 

Where the defendant.'in ejectment, nresisting a tax title, repels the presumption 
by proof that the land in controversy has been duly listed, the plaintiff will be 
required to prove, affirmativelv. that there was a proper listing. Schuyler et al. v. 
Hall 11 111. R., 465 : Tibbetls v. Job et al., 11 111. R., 460. 

A. party seeking to substantiate a tax title must exhibit : first, a valid judg- 
ment against fhe land : second, a valid precept authorizing the officer to make the 
sale ; and, third, a proper conveyance of the land from the sheriff. These are [essen- 
tial to fhe validity of the title, and none of them can! be dispensed wit-h. Atkins v. 
Hinman, 2 GTilm. R., 448. 

The construction of a tax deed in respect to the description of the land con- 
veyed, must be the same as if such description were used in a deed between private 
individuals. The doctrine of strict construction, as applied to the execution of 
naked statutory powers, has no application in such cases. Blakely \.\Bestor, 13 111. R., 
715. 

Courts of chancery tcill not tahe jurisdiction to try the validity of tax titles, 
on the grounds that they are a cloud. Springer v. Rosette et al., 47 111. R.*, 223. 

A deed of land sold for taxes under the revenue law of 1839, made either by the 
officer making the sale or his successor in office, is valid. Bestor v. Powell et al.. 2 
Gilm. R., 727. 

An auditor's deed to land, made in pursuance of a sale for taxes, under the law of 
1827, will not show a complete title in a party, without proof that the pre-requisites 
of the law have been complied with. Irving v. Brownell, 11 111. R., 411. It has been 
held that if any portion of a tax upon which a judgment was rendered, was 
illegal, or ifthe judgment was for too large a sum. even to the extent of a few cents, 
a sale and tax deed based upon such judgment, would be void. McLauqldin v. 
Thompson, 55 111. R., 249. 



276 



REVENUE. 



[DIV. VII. 



Person having 
the right to 
redeem shall 
pay printer's 
fee. 



Deed given in 
two years from 
date of sale. 



record or affidavit shall be prima facie evidence that such 
Perjury. notice has been given. Any person swearing falsely in such 

affidavit, shall be deemed guilty of perjury, and punished 
accordingly. 

Sec. 218. In case any person shall be compelled to publish 
such notice in a newspaper, then, before any person who may 
have a right to redeem such lands or lots from such sale shall 
be permitted to redeem, he shall pay the officer or person who 
by law is authorized to receive such redemption money, the 
amount paid for printer's fee for publishing such notice, for 
the use of the person compelled to publish such notice as 
aforesaid ; the fee for such publication shall not exceed one 
dollar for each tract or lot contained in such notice. 

Sec. 219. At any time after the expiration of two years 
from date of sale of any real estate for taxes or special assess- 
ments, if the same shall not have been redeemed, the county 
clerk, on request, and on the production of the certificate of 
purchase, and upon compliance with the three preceding sec- 
tions, shall execute and deliver to the purchaser, his heirs or 
assigns, a deed of conveyance for the real estate described in 
such certificate. 

Sec. 220. When any person shall hold more than one cer- 
tificate of purchase at the same sale, and for the same year's 
tax or special assessment, the clerk shall on the request of the 
holder of such certificates, include as many tracts or lots 
described therein in the deed of conveyance as such person 
may desire, and for which deed the county clerk shall have a 
fee of fifty cents for each certificate embraced therein : Pro- 
vided, that no greater fee than three dollars shall be charged 
upon any one deed. 

Sec. 221. The deed so made by the county clerk under the 
official seal of his office shall be recorded in the same manner 
as other conveyances of real estate, and shall best in the 
grantee, his heirs and assigns, the title of the property therein 
described without further acknowledgment or evidence of such 
conveyance, and said conveyance shall be substantially in the 
following form : 



Several 
certificates 
maybe 
included in 
one deed. 



Deed shall be 
recorded. 



Form of deed. 



State of Illinois, \ 

County. J 

Whereas at a public sale of real estate for the non-payment of 

taxes made in the county aforesaid on the day of A. D. 

18 — , the following described real estate was sold, to wit: \]ie.re 'place 
description of the real estate conveyed] ; and whereas, the same not 
having been redeemed from said sale, and it appearing that the 
nolder of the certificate of purchase of said real estate has complied 
with the laws of the State of Illinois necessary to entitle [insert 



DIV. YII.] TAX DEEDS. 277 

him, her or them] to a deed of said real estate. Now, therefore, 

know ye, that I. , county clerk ot said county of , in 

consideration of the premises and by virtue of the statutes of the 
State of Illinois in such case provided, do hereby grant and convey 

unto , his heirs and assigns forever, the said real estate 

hereinbefore described, subject, however, to any redemption pro- 
vided by law. 

(liven under mv hand and the seal of our court this day 

of , A. D. 18 . 

, County Clerk. 

Sec. 222. County clerks shall record the evidence upon Evidence must 
which deeds are issued, and be entitled to the same fee there- be recorded - 
for that may be allowed by law for recording deeds. 

Sec. 223. The foregoing six sections shall apply to all To what sales 
sales of real estate for taxes heretofore made, as w ell as to KonsTefer. 
such sales for taxes and special assessments hereafter to be 
made. 

Sec. 224. Deeds executed by the county clerk as aforesaid, Deeds executed 
shall be prima facie evidence in all controversies and suits in prma/aae lerk 
relation to the right of the purchaser, his heirs or assigns, to evidence, 
the real estate thereby conveyed, of the following facts: 1st. 
That the real estate conveyed was subject to taxation at the 
time the same was assessed, and had been listed and assessed 
in the time and manner required by law. 2d. That the taxes 
or special assessments were not paid at any time before the 
sale. 3d. That the real estate conveyed had not been 
redeemed from the sale at the date of the deed. 4th. That 
the real estate was advertised for sale in the manner and for 
the length of time required by law. 5th. That the real estate 
was sold for taxes or special assessments, as stated in the deed. 
6th. That the grantee in the deed was the purchaser or 
assignee of the purchaser. 7th. That the sale was conducted 
in the manner required by law. 

Sec. 225. Unless the holder of the certificate for real certificate for 
estate purchased at any tax sale under this act, takes out the y^, unless 16 
deed as entitled by law, and files the same for record within holder takes 
one year from and after the time for redemption expires, the deed within 
said certificate or deed, and the sale on wdiich it is based, one year ' 
shall, from and after the expiration of such one year, be abso- 
lutely null. If the holder of such certificate shall be prevented 
from obtaining such deed by injunction or order of any court, injunction, 
or by the refusal of the clefk to execute the same, the time he 
is so prevented shall be excluded from the computation of sucli 
time. Certificates of purchase and deeds executed by the 
county clerk shall recite the qualifications required in this ^nilfcatS and 

Section. deeds 



278 



REVENUE. 



[div. VII. 



FORFEITED PROPERTY. 



Forfeited 
property. 



Record book. 



Redemption 
and purchase 
of forfeited 
land 



Duplicate 
receipts. 



Countersigned 
by county 
clerk. 

Filing. 

Entry of 
redemption or 
sale. 



Receipt. 



County clerk 
report to 
auditor. 



Collector pay 
over to his 
successor. 



Amount due 
on forfeited 
lands Nov. 1st 
added to tax of 
current year. 



Sec. 226. Each county clerk shall procure, at the expense 
of the county, a suitable record book, in which they shall 
keep a record of the real property forfeited to the State under 
the provisions of this act. Such book shall be properly ruled 
and headed, and proper columns provided for the several taxes 
and charges, redemptions and sales thereof. 

Sec. 227. If any person shall desire to redeem or pur- 
chase any tract of land or lot forfeited to the State, he shall 
apply to the county clerk, who shall issue his order to the 
county collector, directing him to receive from such person 
the amount due on said tract or lot, which shall in no case be 
less than ten per cent, in addition to the tax, special assess- 
ments, interest and printer's fees due thereon, particularly 
describing the property and setting forth the amount due ; and 
upon presentation of said order to the county collector, he 
shall receive said amount and give the person duplicate 
receipts therefor, setting forth a description of the property 
and the amount received ; one of which shall be countersigned 
by the county clerk, and when so countersigned shall be evi- 
dence of the redemption or sale of the property therein 
described, as the case may be; but no such receipt shall be 
valid until it is countersigned by the county clerk. The other 
receipt shall be filed by the county clerk in his office, and 
said clerk shall make a proper entry of the redemption or sale 
of the property on the books in his office, and charge the 
amount of the redemption or sale money to the county col- 
lector. In cases of sales, the collector and clerk shall make 
the receipt in the form of a certificate of purchase. Property 
purchased under this section shall be subject to redemption, 
notice, etc., the same as if sold at regular public tax sale. 

Sec. 228. It shall be the duty of the county clerk, 
annually, when he makes return of the amount of taxes levied, 
to report to the auditor the amount due the State on account 
of the redemption and sales of such forfeited property, and 
said auditor shall charge the same to the collector. If the 
collector who received said redemption or sale money shall be 
succeeded in office, he shall pay the amount in his hands over 
to his successor, who shall pay said amount into the State treas- 
ury when he settles for the taxes of the current year. 

Sec. 229. The amount due on lands and lots previously 
forfeited to the State, and remaining unpaid on the first day of 
November, shall be added to the tax of the current year, and 
the amount thereof shall be reported against the county col- 



DIV. VII.] FINAL SETTLEMENT OF COUNTY COLLECTOR. 279 

lector with the amount of the taxes for said year; and the 
amount so charged shall be placed on the tax books, collected 
and paid over in like manner as other taxes. The count y c?nector to seu 
collector is hereby authorized to advertise and sell said prop- forfeited 
erty in the manner hereinbefore required by this act, as if property * 
said property had never been forfeited to the State. Said 4?Scont S inSed 
additions and sales shall be continued from year to year until fr <> m year to 
the taxes on said property are paid, by sale or otherwise. 

Sec. 280. The county board may at any time institute suit Suits, 
in an action of debt, in the name of the People of the State 
of Illinois, in any court of competent jurisdiction, for the 
amount due on forfeited property. 

FINAL SETTLEMENT OF COUNTY COLLECTOR. 

Sec. 231. On or before the third Monday in June, annu- Final settle- - 
ally, the county collector shall make out and file with the Sct°o f r? ounty 
county clerk a statement in writing, setting forth, in detail, statement, 
the name of each person charged with personal property tax 
which he has been unable to collect, by reason of the removal 
or insolvency of the person charged with such tax, the value 
of the property, and the amount of tax, the cause of inability 
to collect such tax, in each separate case, in a column pro- 
vided in the list for that purpose. Said collector shall, at the 
same time, make out and file with the county clerk a similar 
detailed list of errors in assessment of real estate, and errors Listoferrors - 
in footing of tax books, giving in each case a description of 
the property, the valuation and amount of several taxes and 
special assessments, and cause of error. The truth of the 
statements contained in such lists shall be verified by affidavit Javit edbyaffi " 
of the county collector. County collectors, in cases of 
removals and insolvencies, may give, as the cause of inability Removals and 
to collect, the same cause as sworn to by the town or district col- mso vencies * 
lectors, stating in their return the fact that such was the state- 
ment made by the town or district collector, and that such tax 
still remains uncollected. 

Sec. 232. If any lands or lots shall be forfeited to the credit to coi- 
State for taxes or special assessments, the collector shall be Jjj forfeited* 
entitled to a credit in his final settlement, for the amount of lands - 
the several taxes and special assessments thereon — the county 
to allow the amount of printers' fees thereon, and be entitled 
to said fees so allowed, when collected. 

Sec. 233. On the third Monday in June annually, the Annual settle- 
county board shall settle with and allow the county collector Sun't^coi- 
credit for such allowance as he may be legally entitled to. lector - 



280 REVENUE. [DIV. VII. 

When county Sec. 234. If there be no session of the county board held 
seiion^ists at the P ro P er time f° r settling and adjusting the accounts of 
to be filed with the county collector, it shall be the dutv of the collector to 

county clerk. . . * 

file the lists with the county clerk, who shall examine said 
lists and correct the same, if necessary, in like manner as said 
board is required to do. Said county clerk shall make an 
accurate computation of the value of the property and the 

Delinquent tax - * , ,. j • i J 

amount of the delinquent tax and special assessments 

returned, for which the collector is entitled to credit, 
county clerk Sec. 235. The county clerk shall immediately, in either 
certify to audi- ca se, certify to the auditor of public accounts the valuation of 

property, and the amount of State taxes due thereon, for 

which the collector may be allowed credit, 
county clerk Sec. 236. The county clerk shall also, at the same time, 
certify to other certify to the several authorities or persons with whom the 

authorities. J „ . , , , r , . . _ . 

county collector is to make settlement, showing the valuation 
of property and amount of taxes and special assessments due 
thereon allowable to said collector in the settlement of their 
several accounts. 
Final settle- Sec. 237. The auditor and other proper autnorities or per- 
£ e conector dit sons shall, in their final settlements with the collector, allow 
Proviso. him credit for the amount so certified : Provided, that if the 

auditor or such other proper authoiiities or persons shall have 
reason to believe that the amount stated in said certificate is 
not correct, or that the allowance was illegally made, he or 
they shall return the same for correction ; and when the same 
shall appear to be necessary, in the opinion of the auditor or 
Examination sucn otner P r op er authorities or persons, he or they shall des- 
of collector's ignate and appoint some competent person to examine the col- 
lector's books and settlement, and the person so designated 
and appointed shall have access to the collector's books and 
papers, appertaining to such collector's office or settlement, for 
the purpose of making such examination. 
County board Sec. 238. In all cases when the adjustment is made with 
mentmade ttle " the county clerk, the county board, shall, at the first session 
Serk. C ° unty thereafter, examine such settlement, and if found correct shall 
enter an order to that effect ; but if any omission or error is 
found, said board shall cause the same to be corrected, and 
a correct statement of the facts in the case forwarded to the 
auditor and other proper authorities or persons, who shall cor- 
rect and adjust the collector's accounts accordingly. 



DIV. VII.] PARTIAL SETTLEMENT OF COUNTY COLLECTOR. 281 



PARTIAL SETTLEMENT OF COUNTY COLLECTORS. 

Sec 239. On or before the tenth day of April, annually, Partial settle- 
after he has made settlement with town or district collectors, collectors. 01111 J 
the county collector shall make a sworn statement, show the Sworn state- 
total amounts of each kind of tax received by him from town 
or district collectors, and the total amount of each collected 
by himself — which statement shall be filed in the office of the 
county clerk. 

Sec. 240. The clerk shall immediately, on the receipt of cierk certify 
such statement, certify to the auditor and to other proper She^utnoS? 
authorities or persons, the amount for which the collector is ties - 
required to settle with them, severally. 

Sec. 241. The county collector shall, on or before the when collector 
fifteenth day of April following, pay over to the State treasurer SSes to the Ver 
the taxes in his hands, payable to the State treasury, as shown state treasurer - 
by the statement required by section two hundred and thirty- 
nine of this act. 

Sec. 242. The failure of any county collector to obtain judg- coiiectorto 
ment shall not prevent him from presenting his statement of figment, 
credits, and making settlement for taxes and special assess- 
ments in his hands, at the time required by this act; but if, 
from no fault of the collector, he fail to obtain judgment and 
sale of delinquent real estate at the time required by this act, 
he shall be allowed, in his settlements, a temporary credit for 
the amount of taxes and special assessments in such delinquent 
list, which delinquent taxes and special assessments shall be 
accounted for and paid immediately after sale is had. 

Sec. 243. He shall, within the same time, pay over to the shall pay to 
other proper authorities or persons, the amounts so shown to be £ u tSorities. 
in his hands, and payable to them. 

Sec. 244. The county collector shall report and pay over shall report 
the amount of tax and special assessments, due to towns, dis- taxes > due V r 
tricts, cities, villages, corporations and persons, collected D y t0WI1 f» etc - 
him on delinquent property, at least once in every ten days, 
when demanded by the proper authorities or persons. 

Sec. 245. Any county collector failing to make the reports Failure to make 
and payments hereinbefore required, for five days after the pigments, 
time specified for that purpose, or after demand made as afore- 
said, the auditor or such other authorities or persons, may 
bring suit upon the collector's bond. 

Sec. 246. If any county collector fails to account and pay 
over, as required in the preceding sections, his office may be 
declared vacant by the county board, or by any court in which 
suit is brought on his official bond. 



282 



REVENUE. 



[DIV. VII. 



FINAL SETTLEMENT OF THE COUNTY COLLECTOR FOR STATE 

TAXES. 



Final 

settlement for 
State taxes. 



Proviso. 



Further proviso 



County clerk 
furnish 
statement to 
auditor. 



Statement 
objected toby 
auditor. 



Over payment 
by collector 



Settlement 
between 
collectors and 
auditors. 



Sec. 247. The county clerk shall make out and deliver to 
the county collector, as soon as adjustment is made with the 
county board or county clerk, annually, the statements, certifi- 
cates and lists appertaining to the settlement of the accounts 
of such collector ; which statement, certificates and lists shall 
be made out in proper form, under his seal of office, on blanks 
which it is hereby made [the] duty of the auditor to furnish, 
annually, for that purpose. The collector shall deliver the 
same at the office of the auditor, and make a final settlement 
of his accounts, and pay the amount due the State into the State 
treasury on or before the first day of July next after receiving 
the tax books : Provided, that in all cases where the statements, 
certificates and lists appertaining to the final settlement of a 
collector are on file with the auditor, on or before the first day 
of July, the auditor shall not charge interest on the balance 
found due on the account of such collector, for fifteen days after 
mailing said auditor's statement, showing balance due the State 
on such collector's account : Provided, further, that this section 
shall not be held to relieve any collector from the payment of 
interest charged on his account by reason of failure to make 
payment to the State, at other time or times, as required by 
this or any other act of the General Assembly of this State. 

Sec. 248. The county clerk shall furnish a duplicate copy 
of said statement, duly certified, whenever requested so to do 
by the auditor. If the statement of credits herein required, 
or any of the items therein, are objected to by the auditor, he 
shall return the statement to the county clerk, stating his 
objections, and said clerk shall examine and correct or explain 
the same satisfactorily, and return the statement to said 
auditor. 

Sec. 249. If any collector shall have paid, or may hereafter 
pay, into the State treasury, any greater sum or sums of money 
than are or may be legally and justly due from such collector, 
after deducting abatements and commissions, the auditor shall 
issue his warrant for the amount so overpaid, which shall be 
paid out of the fund or funds so overpaid on said warrant. 

Sec. 250. Upon ascertaining the amount due to the State 
from any collector or other person, the auditor shall give such 
person a statement of the amount to be paid, and upon the 
presentation of such statement to the State treasurer, and the 
payment of the sum stated to be due, the treasurer shall give 
duplicate receipts therefor, one of which shall be filed in the 



DIV. VII.] LIEN OF TAXES. 283 

auditor's office, and entered in a book to be kept for that pur- 
pose, and the other shall be countersigned by the auditor and 
delivered to the person making the payment ; and no payment 
shall be considered as having been made until the treasurer's 
receipt shall be countersigned by the auditor as aforesaid. 

Sbc. 251. Any collector failing to pay into the State treas- collector 
ury the amount due to the State, on his account for State and f^^f^ pay 

i i • 'ill- in int o State 

other taxes, at the time or times required by this act, shall treasury, 
pay interest at the rate of ten per cent, per annum from the 
time the same became due under this act until the same is 
paid ; and it shall be the duty of the auditor to charge such 
interest to the account of every collector failing to pay at the 
time or times required by this act. In no case shall the 
auditor be permitted to remit such interest unless satisfactory 
evidence from the county board is presented to him, showing, 
by official action taken by such board, lawful cause why the 
collector could not pay over, in part or in whole, the amount 
due on such collector's account with the State. 

Sec. 252. Upon the final settlement of any account with Duplicate 
the State, the auditor shall give the collector duplicate certifi- gf Jcnon e fiuai 
cates, under his seal of office, setting forth that said collector settlement. 
has settled and paid into the State treasury the full amount 
due from him on said account; and it shall be the duty of the 
collector to file one of said certificates in the office of the 0ne filed with 
county clerk, on or before the first day of August next after county clerk, 
receiving the tax books. If any collector shall neglect or 
refuse to file one of said certificates as above required, the 
county clerk shall leave a written notice at the office of said 
collector, requiring him to appear before the county court, at 
the September term thereof, and show cause why he has not 
filed the certificate aforesaid; and if the collector shall not 
show that he has paid over the full amount clue from him, and 
made a final settlement with the State and county, or that he 
has a lawful excuse for failing to do so, his office as collector 
and treasurer shall be declared vacant by said court, and the ?acant declared 
same filed as in other cases of vacancy by reason of death or 
otherwise. 

LIENS OF TAXES. 

Sec. 253. The taxes assessed upon real property shall be a Lien on real 
lien thereon from and including the first day of May, in the propexty - 
year in which they are levied, until the same are paid.(l) 

(1) Ti\e payment of taxes by any person exthiyui sites them, and if a volun- 
tary attempt is made to pay them a second time, the last will be considesed a 
gratuity to the taxing power. Monison v. Kelly, 22 111. It., G2G. 



284 



REVENUE. 



[div. VII. 



On personal. 



Sec. 254:. The taxes assessed upon personal property shall 
be a lien upon the personal property of the person assessed, 
from and after the time the tax books are received by the 
collector. 



Personal 



Sec. 255. Personal 



shall be liable for taxes 



property 
property liable levied on real property, and real property shall be liable for 

lor tax on reaL -i • -i J i it i 

taxes levied on personal property, but the tax on personal 



Real property 
liable for tax 
on personal. 



Proviso. 



Lien of aeent 
for tax, 



property shall not be charged against real property, except in 
cases of removals, or where said tax cannot be made out of 
the personal property ; but • the tax on real property may 
be made out of personal property at any time after the 
tax becomes due, by any collector having the tax books 
in hk hands, by distraint and sale, in the manner provi- 
ded in this act: Provided, That judgment against real 
property for non-payment of taxes thereon, shall not be 
prevented by showing that the owner thereof was pos- 
sessed of personal property subject to distraint; and no person 
shall be subject to have his personal property distrained and 
sold for tax on real estate, which may have been listed and 
assessed in his name, when he makes oath, or otherwise satis- 
fies the collector that he did not own such real property on the 
preceding first day of May. 

Sec. '2d6. When property is assessed to any person as 
agent for another, or in a representative capacity, such person 
shall have a lien upon such property, or any property of his 
principal in his possession, until he is indemnified against the 
payment thereof, or if he has paid the tax, until he is reim- 
bursed for such payment. 

TJie tares of any year mar be paid at anv time before sale. Cofidd v. Farry, 
19 HI. R.. 183. 

TJie word "jxtid." on a collector's boo!;, opposite a tract of land, is not evi- 
dence that the taxes' were paid bv the person in whose name the land is listed. 
Iru-inx. Miller. 23 111. R.. ML 

A. tax receipt, which siraply shows that "dollars" were received, and faflfi bo 
s*ste that, whatever amount w'as received, was in full of the taxes assessed, and 
there is no character opposite the figures to indicate what they are designed to repre- 
sent, is fatally defective. But in using the receipt under the'seven years' limitation 
act, where it simply means the year for which the taxes were paid, without giving 
the dav or month when it was givea, it is sufficient as showing the payment of the 
taxes assessed for that year. Cook v. Norton et al.. 43 111. R. 

A tax receipt which erroneously states the number of acres in a it a:: c: \ :: :d. :u: 
describes a legal sub-division, is good : the statement of the quantity is immaterial. 
Morrii \ Harmon et al., 47 111. R.. 478. 

The receipt describing the premises upon which the taxes were paid, by Xo. 5 
placed in a column headed "lot," and 9 in the next column headed "block." then 
followed the figure S in the eolumn headed "lot," but with no number opposite 
thereto in the column headed " block." Held, that this description was sufficient to 
iustifv the inference, nothing appearing to the contrarv, that lot was in the same 
block as lot 5 . p >:'• v. Barso, 40 111. R., 307. 

An affidavit of Joss of receipts might authorize proof of their contents, but 
not the introduction of the collector's book to prove the word "' paid " entered on 
them, the contents ot such receipts, Irwin v. Miller, 23 111. R,. 401. 

Where taxes have beeu paid upon property legally liable to taxation, they cannot 
be recovered back, although the assessment was informal and irregular, and not 
strietlv in conformitv with the statute, or the statute itself defective *n respect to the 
manner in which the assessment is directed to be made. Board of Supervisors of 
Stephenson Co. v. Manny, 56 111., 160. 



PIV. VII.] LIABILITY ON BONDS. 285 



WHO NOT ELIGIBLE AS BONDSMAN. 

Sec. 257. No judge of the county court, chairman of^ 8 ™!™* 
the county board, clerk of the circuit court, county clerk, bondsmen, 
sheriff, deputy sheriff or toroner, shall be permitted to be 
a surety on the bond of a county, town, district or deputy 
collector or county treasurer. 

LIABILITY ON BONDS. 

Sec. 258. The bond of every county, town or district col- Bond of col- 
lector shall be held to be security for the payment by such security? 1 * 1 M 
collector to the State treasurer, county treasurer, and the sev- 
eral cities, towns and villages, and proper authorities and per- 
sons, respectively, of all taxes and special assessments which 
may be collected or received by him on their behalf, by virtue 
of any law in force at the time of giving such bond, or that 
may be passed or take effect thereafter. 

Sec 259. Upon the failure of any collector to make settle- Duty of auditor 
ment with the auditor or to pay money into the State treas- conector toset- 
ury, as required by law, it shall be the duty of the auditor to tle< 
sue the collector and his securities upon the bond of such col- 
lector, and take such proceedings thereon as shall be neces- 
sary to protect the interests of the State. * 

Sec. 260. When suit .is prosecuted by the auditor, it may where suit 
be instituted in either division of the supreme court, or i n ma y bebrou s ht 
Sangamon county circuit court, or in any court of record in 
this State, having jurisdiction of fhe amount. * 

Sec. 261. When suit has been instituted by the auditor, 
any party aggrieved may proceed under judgment obtained, 
by writ of inquiry of damages, as in other cases on bonds. * 

Sec. 262. Cities, towns, villages, or corporate authorities cities and 
or persons, aggrieved, may prosecute suit on the bond of any ^^S^uit 
collector, for their use, in any court having competent juris- 
diction, whether the bond has been put in suit of judgment 
obtained thereon, by the auditor, or not ; and in case of judg- 
ment thereon the auditor may, if he shall so elect, have a 
writ of inquiry of damages, for any amount that may be due 
to the State treasury from such collector. * 

Sec. 263. The State shall pay like fees as are or may be Fees, how to 
allowed by law in suits between individuals ; and in all cases be paid - 
when the State is plaintiff, it shall advance and pay such fees 
in like manner as individuals are required to advance and pay 
fees : and when the State becomes the purchaser of real prop- 
erty sold on execution, for any debt due the State, the officer 

* Amended, see post, p. 296. 



286 



REVENUE. 



[div. VII. 



selling such real estate shall be entitled to like commissions as 
he would have been entitled to had such property been pur- 
chased by an individual — said fees and commissions to be paid 
on the warrant of the auditor, out of any money in the treas- 
ury appropriated for that purpose ; and when such fees are 
collected they shall be paid into the State treasury. 

SALE OF REAL ESTATE ON EXECUTION IN. BEHALF OF THE 
STATE REDEMPTION. 



Sale of realty 
by State. 



Duty of officer 
making levy. 



Two-thirds of 
its value. 



Redemption. 



Moneys 
received on 
execution in 
behalf of the 
State. 



Sec. 264. When real estate shall be levied upon to satisfy 
any judgment in favor of the State, it shall be the duty of 
the officer making such levy to transmit, by mail, to the audi- 
tor, at least twenty days before the day of sale, a correct 
statement, showing the description and value of said property, 
in cash ; the truth of said statement shall be attested by the 
oath of said officer. Said officer shall, at the same time, fur- 
nish the auditor with an abstract of title of the property lev- 
ied upon, the expense thereof to be charged and collected as 
costs. And the auditor is hereby authorized and required to 
purchase, in his name, for the use of the People of the State 
of Illinois, at a price not exceeding two -thirds of said value, 
so much of said property as may be required to pay the 
amount of the judgments and costs aforesaid ; and it shall be 
the duty of the officer making such sale to forward to the 
auditor a certificate of purchase, and make his return, as 
required in other cases of sales on execution. Any person 
desiring to redeem afl or part of said property from such sale, 
shall pay the amount of redemption money into the State 
treasury, and thereupon the auditor shall indorse such pay- 
ment on the back of the certificate of purchase aforesaid, and 
deliver it to the person so paying, which shall have the same 
effect as redemptions have in other cases ; bnt no real estate 
purchased as aforesaid shall be considered redeemed from such 
sale until the redemption money is paid into the State treas- 
ury. Such certificate may be recorded in the recorder's office 
of the county in which such real property is situated, and 
shall operate as a release of record of such property. 

Sec. 265. All moneys received -by any sheriff or other 
officer, on execution, in behalf of the State, shall be paid by 
such officer to the State treasurer, or to the collector of his 
county, as may be directed by the auditor, within twenty 
days after demand is made by said auditor. Said demand 
may be made by any person authorized by the auditor. 



r>I\\ VII.] DOUBLE PAYMENT — REFUNDING. 287 

. 266. If any real estate, purchased by the State on Unredeemed 
execution, shall not be redeemed within the time required by Sate deed! * 
law, it shall be the duty of the auditor to obtain a deed or 
deeds therefor ; which he shall cause to be recorded in a book 
kept for that purpose in his office, and shall take such steps 
as he shall deem necessary to protect the timber or fixtures 
thereon from being lost or destroyed. 

DOUBLE PAYMENT AND ASSESSMENT — REFUNDING. 

Sec. 207. "Whenever the taxes on the same property shall Payment of 
have been paid more than once, for the same year, by differ- enu&Smants*" 
ent claimants, the county collector shall make a return to the 
county clerk of all such surplus taxes so received by him, 
together with the names of the several claimants thus paying. 
Certified copies of said return, or of record thereof, by the 
county clerk, or of the county clerk's report, by the auditor, 
shall be prima facie evidence in all courts, when the same 
shall come in question, of the payment of tax on the property 
therein described for the year or years therein mentioned. 
The county clerk shall make a full record of all such cases, 
and transmit a certified copy thereof to the auditor, who shall 
charge such collector with the portion of such surplus taxes 
belonging to the State. The town or district collectors shall 
report such cases to the county collector, and he to the 
county clerk. 

Sec. 268. If any real property shall be twice assessed foi'Doubie 
the same year, or assessed before it becomes taxable, and the assessments. 
taxes so erroneously assessed shall have been paid, either at 
sale or otherwise, or having been paid twice by different claim- erroneously 
ants, the county board, on application of the person paying the sold ' 
same, or his agent, and being satisfied of the facts in the case, 
shall cause the State and county taxes to be refunded pro rata ^JK° r sha11 
by the State and county ; and the city and incorporated town 
or village taxes and special assessments, by the city or incor- 
porated town, village or other proper authorities or persons. 
If any countys, town or district collector shall receive the taxes 
or special assessments properly due on any real property, and 
the same shall afterwards be sold for said taxes or special assess- 
ments, he shall refund to the purchaser thereof if applica- 
tion be made within three years from the date of said sale, Limitatl0n - 
double the amount of purchase money and all expenses of 
advertising said real estate under this act, requiring real estate 
purchased at tax sales to be advertised, including cost of deeds. 
Any collector neglecting or refusing to pay as required by 
19 



-38 REVENUE. [dIY. VII. 

this section, shall be liable to the county, or person in interest, 
in an action of debt in any court having jurisdiction. (1) 

WHEN RECORDS ARE DESTROYED. 

Destruction of ^ E0, ^^* ^ nen assessment rolls or collector's books, in 
assessment whole or in part, of any county, town, city, incorporated vil- 
lector's books, lage or district, shall be lost or destroyed by any means what- 
ever, a new assessment, or new books, as the case may require, 
shall be made under the direction of the county board. Said 
board shall, in such cases, fix reasonable times and dates for per- 
forming the work of assessment, equalization, levy, extension 
and collection of taxes, and paying over the same, or making 
new books, as the circumstances of the case may require. All 
the provisions of this act shall apply to the dates fixed by the 
county board, in the same manner that they apply to the dates 
for similar purposes, as fixed by this a<§t. The county board 
is hereby fully empowered to select and appoint persons, where 
it may find the same necessary, to carry into effect the provi- 
sions of this section. 

OTHER DUTIES OF AUDITOR. 

Properly Sec. 270. Whenever it shall come to the knowledge of the 

taxa a tion. from auditor that any county, township, city, district or town, or 
any well - defined locality thereof, or any particular class of pro- 
perty therein, has heretofore been or may hereafter be released, 
from any cause whatever, from its just proportion of State 
therein. audltor taxes, said auditor shall cause suit to be commenced in an action 
of debt, in the name of the People of the State of Illinois, 
either against the municipality or against the property unjustly 
released from taxation, or the owners thereof, for the amount 
of such tax, in the supreme court of this State, in either divi- 
sion thereof ; and when judgment may be recovered in any 
such case, the auditor shall levy a rate of tax on the equalized 
valuation of all property or particular class of property in such 

(1) TJie evidence on icJiitfi the State tax is refunded is the certificate of the 
county clerk, showing the action of the board of supervisors. The certificate should 
describe the property and show the years tax sold for or paid, or both, the amount 
of State and county tax separate, * and the cause of error. Opinion Auditor 
Lippincott. December 28. 1869. 

After a deed has been given, erroneous sales can only be canceled by the voluntary 
return of the deed. Opinion Auditor Lippincott, August 20, 1869. 

In no case can the State be compelled to refund a tax voluntarily paid, upon a 
claim of technical illegality in the assessment, provided the property on which it 
was paid was legally taxable. People ex rel. v. Miner, 46 111. R., 374. 

There is no law requiring the county or State tax to be refunded on personal pro- 

Jerty, however erroneously taxed. * Opinion Auditor Mixer, October 11. 1SG7; 
anuary 17, 1868; Septemper 14, 1807. Opinion Auditor Lippixcott, July 26, 1869. 



DIV. VII.] OTHEB DUTIES OF AUDITOR. 289 

county, township, city, district, town or locality, as the case 
may be, as will pay the State the amount of such judgment 
and costs; and it shall be the duty of the county clerk of the 
proper county to extend such rate of tax with the State tax 
of the year directed in the auditor's certificate. Any county rem"mg C io r 

k neglecting or refusing to extend such rate, as certified to Jemo vafaSd" 
him by the auditor, shall be removed from his office, and in tiuelor - 
addition thereto shall be subject to a^fine of five thousand dol- 
lars, and damages caused by such neglect or refusal, to be 
sued for by the auditor, in an action of debt, in the name of the 
People of the State of Illinois, in either division of the supreme 
court of this State : Provided, that in cases where the auditor Proviso, 
and proper local authorities of the proper municipality can 
arrange to make such levy to reimburse the State in such 
cases, without suit, the auditor is hereby authorized to pursue 
such course. 

Sec. 271. The auditor is authorized to sell, transfer and Auditor 
convey, by deed, any and all real estate that may have been gd^reafestate. 
heretofore, or may be hereafter, purchased or take in payment, to 
satisfy any judgment or any execution in favor of the State, 
by this State or by any officer of this State, for the benefit and 
use of the State, to any person or persons who may pay into 
• rate treasury the full amount paid by the State for said 
property, including costs, and six per cent, interest thereon, 
from the date of said sale to the time of such payment : Pro- p roviso , 
vided, that the sale of the real estate, in part or in whole, may 
be made at such price, not less than the price paid for such 
part or the whole of the property, as the case may be, as the 
judge of the county court, chairman of the county board, and 
the sheriff of the county in which the estate is situated, shall 
certify the same to be worth ; or, if not sold in one year from 
and after the expiration of the time of redemption now or here- 
after allowed by law, said property may, if the auditor thinks 
the valuation fair, be sold by said auditor upon and for any 
valuation of said property which may be apprised and certified 
by the judge of the county court, chairman of the county board coumy judge. 
and sheriff of the county in which such property is situated. 

Sec. 272. On the first day of May in each year, or as Auditor obtain 
soon thereafter as practicable, the auditor shall obtain fY om abstracts, 
the United States land office in this State abstracts of the 
lands entered and located, and not previously obtained, and 
shall, at the same time, obtain. from the Illinois Central rail- 
road and canal offices abstracts of the Central railroad and 
canal lands sold. Upon the receipt of said abstracts, the 
auditor shall cause them to be transcribed into the tract books 



290 



REVENUE. 



[DIV. VII. 



abstracts of the 
reported to his 



in his office, and shall, without delay, cause 
lands in each county, including school lands 
office as having been sold, to be made out and forwarded by 
mail to the county clerks of the several counties; and said 
clerks shall cause such abstracts to be transcribed into the 
tract book, and filed in their office. The expense of procur- 
ing and furnishing the abstracts required by this section, shall 
be paid by the auditor out of the appropriation for the expen- 
ses of his office. 

Sec. 273. It shall be the duty of the auditor to make out 
and forward to each county clerk, from time to time, for the 
use of such clerks and other officers, suitable forms and 
instructions; and all such instructions shall be strictly com- 
plied with by. the officers in the performance of their respec- 
tive duties. He shall give his opinion and advice on all ques- 
tions of doubt as to the true intent and meaning of the 
provisions of this act.(l) 

Sec. 274. The auditor shall, as soon as practicable after 
ustribukonof the passage of this act, cause the same to be correctly printed 
this act. j n p am phi e t; form, and transmit to each county clerk a suffi- 

cient number of copies thereof for the use of the several 
county, town and district officers ; and said clerk shall deliver 
the same to the proper officers. 
, , Sec. 275. The county clerks of the several counties shall, 

County clerk ,, i T t r> i i 

shall report list annually, report to the auditor a list ot the swamp and over- 
>wamp an s. fl owe( j ] an( j g^ j n their respective counties for the year 

ending on the first day of May, and the auditor shall enter 

the same in the tract books of his office. 



E^enses of 
abstracts. 



Auditor shall 
furnish county 
clerk with 
forms. 



Shall give his 
opinion and 
advice. 



Printing and 



OMITTED PROPERTY SAVING CLAUSES. 



Omitted 
property. 



Arrearages. 



Sec. 276. If any real or personal property shall be omitted 
in the assessment of any year or number of years, or the tax 
thereon, for which such property was liable, from any cause 
has not been paid, or if any such property, by reason of defec- 
tive description or assessment thereof, shall fail to pay taxes 
for any year or years, in either case the same, when discov- 
ered, shall be listed and assessed by the assessor and placed 
on the assessment and tax books. The arrearages of tax 



(1) The opinions given by an officer whose duty it is by law to give such opinion, 
in regard to the intent or meaning of a law, as a general rule, will be regarded 
favorably by the courts, and upheld unless clearly erroneous. 

The forms and instructions of the auditor, made out in conformit5 T to law, must 
be used by the revenue officers. But, if the auditor direct statistical, financial or 
other items of information not required by law. the auditor cannot enforce the per- 
formance of such burden by rejecting the return, duly made out in conformity 
to law. Stark Co. Bank v. McGregor, 6 Ohio State JR., 45. 



DIV. VII.] OMITTED PROPERTY — SAVING CLAUSES. 291 

which might have been assessed, with ten per cent, interest 
thereon, from the time the same ought to have been paid, 
shall be charged against such property by the county clerk. 
It shall be the duty of county clerks to add uncollected per- 
sonal property tax to the tax of any subsequent year, when- 
ever they may find the person owing such uncollected tax 
for any subsequent year. 

277. If the tax or assessment on property liable to i'»w« 197a, 
taxation is prevented from being collected for any year or vs- 204. 

years, by reason of any erroneous proceeding or other cause, ' v ' 

the amount of such tax or assessment which such property proceedings, 
should have paid, may be added to the tax on such property 
for any subsequent year, in separate columns, designating the 
year or years. 

Sec. 278. No such charge for tax and interest for previous n charges 
years, as provided for in the preceding section, shall be inadeig! or toowner- 
against any property prior to the date of ownership of the 
person owning such property at the time the liability for such 
omitted tax was first ascertained : Provided, that the owner 
of property, if known, assessed under this and the preceding 
section, shall be notified by the assessor or clerk, as the case 
may require. 

Sec. 279. When any special assessment is not returned to Returns of 
the county collector on or before the first day of March nextJJInSlwhe?" 
after it is due, the same may be returned on or before the first barred - 
day of March in the succeeding year; and, if not then 
returned, it shall be considered barred, unless return is pre- 
vented by an injunction or order of court ; and the time such 
return is thus prevented shall be excluded from the computa- 
tion of such time. 

Sec. 280. A failure to complete an assessment in the time Failure to corn- 
required by this act shall not vitiate such assessment, but the ment asscss " 
same shall be as legal and valid as if completed in the time 
required by law. 

Sec. 281. No assessment of real or personal property, or informality not 
charge for taxes thereon, shall be considered illegal on account Vltiate - 
of any informality in making the assessment, or in the tax 
lists, or on account of the assessments not being made or com- 
pleted within the time required by law. 

Sec. 282. Any failure to deliver the collector's books within Failure to de- 
the time required by this act, shall in no way affect the valid- tJI& C i2S ptor ' i 
ity of the assessment and levy of taxes, but in all cases of Vltiate - 
such failure, the assessment and levy of taxes shall be held to 
be as valid and binding as if said books had been delivered at 
or within the time required by law. 



292 



REVENUE. 



[div. VII. 



charged to Sec. 283. No sale of real estate for taxes shall be consid- 

notvftSSe! 16 erec ^ invalid on account of the same having been charged in 
any other name than that of the rightful owner. 

WHO MAY ADMINISTER OATHS. 

who may ad- Sec. 284. Any oath authorized to be administered under 
minister oaths. ^ n i s ac t ? ma y be administered by an assessor or deputy 
assessor, or by any other officer having authority to admin- 
ister oaths. 

PENALTIES OF OFFICERS. 



Penalty for 
unlawful acts 
by county 
clerk and col- 
lector. 



Collector fail 
ing to obtain 
judgment. 



Sec. 285. If any county clerk shall deliver the tax books 
into the hands of the county collector, or if any collector 
shall receive said books or eollect any taxes until such col- 
lector's bond has been approved and filed, as required by this 
act, said clerk and collector, and each of them, shall be liable 
to a penalty of not less than five hundred dollars, and all 
damages and costs, to be recovered in an action of debt ; and 
the auditor shall bring suit therefor, in the name of the 
People of the State of Illinois — the amount recovered on 
such fines to be paid into the State treasury as revenue fund. 
Nothing in this section shall be construed as relieving the 
securities of a collector from liabilities incurred under a bond 
not approved and filed by the auditor. 

Sec. 286. If any collector shall, by his own neglect, fail to 
obtain judgment at the May term of the county court, or 
shall fail to present his list of delinquencies on personal prop- 
erty, or errors in assessment of real estate, at the time 
required by this act, he shall lose the benefit of any abate- 
ment to which he might have been entitled, and shall pay to 
the State and county the full amount charged against him, 
after deducting the fees allowed by this act for collecting and 
paying over taxes. If the county court is not held at the 
May term, the collector shall have further time to pay over 
the amount due on the delinquent list. 

' Sec 287. If any officer shall fail or neglect to perform 
ficer to perform any of the duties required of him by this act, upon being 
duties. required so to do by any person interested in the matter, he 

shall be liable to a fine of not less than ten dollars nor more 
than five hundred dollars, to be recovered in an action of debt 
in the circuit court of the proper county, and may be removed 
from office at the discretion of the court; and any officer 
who shall knowingly violate any of the provisions of this act, 



Failure of of- 



DTV. VII.] COUNTY FUNDS — ACCOUNTS THEREOF. 29-3 

shall be liable to a fine of not less than ten dollars nor more Fine. 

than one thousand dollars, to be recovered in an action of 

debt in the name of the People of the State of Illinois, in 

any court having jurisdiction, and may be removed from office Removal from 

at the discretion of the court, and said fines, when recovered, 

shall be paid into the county treasury. 

Sec. 288. Every county clerk, assessor, collector, or other cierk, assessor, 
officer who shall in any case refuse or knowingly neglect to StiVc^officer 
perform any duty enjoined upon him by this act, or who shall ^"^duties 
consent to or connive at any evasion of its provisions, whereby 
any proceeding required by this act shall be prevented or hin- 
dered, or whereby any property required to be listed for taxa- 
tion shall be unlawfully exempted, or the same be entered upon 
the tax list at less than its fair cash value, shall, for every such Penalty. 
offense, neglect or refusal, be liable, on the complaint of any 
person, for double the amount of the loss or damage caused 
thereby, to be recovered in an action of debt, in the name of 
the People of the State of Illinois, in any court having juris- 
diction, and may be removed from his office at the discretion 
of the court. 

COUNTY TO FURNISH BOOKS AND BLANKS. 

Sec. 289. The county board shall direct the county clerk county furnish 
to procure all necessary books and blanks required, by this act an s ' 
to be used in the assessment of property and collection of 
taxes, at the expense of the county. 

COUNTY FUNDS MANNER OF KEEPING ACCOUNTS THEREOF. 

Sec. 290. The county collector shall, on the first of every Accounts of 
month, report to the county clerk, in writing, the amount of coKector- how 
county tax received by him during the preceding month, show- kept 
ing what amount of said tax was received in money, and what 
amount in county orders and jury certificates. The county 
collector shall keep his account as collector of taxes separate 
from his account as county treasurer. He shall credit his 
account as collector with the amount of his monthly reports 
to the county clerk, and with the amount of insolvencies, 
removals, errors, forfeitures, and other credits allowed him on 
settlement with the county board; and as county treasurer he 
shall charge himself with the amount shown in his monthly 
report to the county clerk, as aforesaid, and such other 
amounts as may come into his hands as county treasurer; and 
he shall, as such treasurer, after the close of each month, can- 



m 



REVENUE. 



[DIV. VII. 



County board 
to examine 
accounts. 



Accounts of 
county clerk- 
how kept. 



Treasurer's 
account. 



eel the county orders and jury certificates in his hands, and 
return the same with a descriptive list, giving numbers and 
amounts properly footed, to the county clerk, who shall care- 
fully compare and file the same in his office, subject to the 
order of the county boar,d, and give the treasurer a receipt for 
the same ; which receipt shall be the evidence upon which the 
county treasurer shall take credit in his accounts as such treas- 
urer, with the county, subject to the approval of the county 
board. The county board shall examine such account and 
vouchers, at such time or times, by committee or otherwise, 
as may be deemed requisite. 

Sec. 291. Each county clerk shall keep an account with 
the county collector, charging him with the amount of county 
tax placed in his hands for collection, and with the county tax 
received by him from sales and redemptions of forfeited prop- 
erty, and with any other funds belonging to the county, that 
shall come into the collector's hands; and shall credit him 
with the amounts ascertained as required in the preceding sec- 
tion, charged to the county treasurer's account, monthly; 
also, with amount of county tax on insolvencies, removals. 
errors, forfeited property, etc., whenever ascertained in the 
manner required by this act. The county clerks shall also 
keep a treasurer's account with the county treasurer of their 
respective counties, the treasurer shall be charged with the 
amount of money, county orders and jury certificates reported 
in the collector's monthly statements required to be made in 
the preceding section, and all amounts paid to the county 
treasurer from other sources than the county revenue tax; and 
it is hereby made the duty of all persons paying money into 
the county treasury for all purposes except the county taxes. 
to first obtain from the county clerk an order on the treasurer 
to receive the same, and the treasurer shall give the person so 
paying duplicate receipts therefor, one of which shall be 
countersigned by the county clerk, and retained by the person 
paying over the amount, and the other filed in the county 
clerk's office, and the amount thereof charged against the 
treasurer. The treasurer's account shall be credited, monthly, 
with the amount of county orders and jury certificates can- 
celled and filed in the county clerk's office, as required in the 
prceding section. 



DEFINITIONS. 



Definitions. 



Sec. 292. The words and phrases following, whenever used 
in this act, shall be construed to include in their meaning the 



DIV 



VII.] DEFINITIONS. 295 



definitions Bet opposite the same in this section, whenever it 
shall ssary to the proper construction of this act: 

1st. Assessor — Assessors. — Town, district and deputy Assessors. 

2d. Auditor. — Auditor of public accounts. Auditor. 

3d. Bank — Banker — Broker — Stock-Jobber. — "Who- Bank, bankers, 
ever has money employed in the business of dealing in coin, etc> 

. or bills of exchange, or in the business of dealing in or 
buying or selling any kind of bills of exchange, checks, drafts, 
bank notes, promissory notes, bonds or other writing obligatory, 
eks of any kind or description whatsoever, or receiving- 
money on deposit. 

4th. Collector — Collectors. — County, town, district collectors. 
and deputy collectors. 

5th. County Board. — The board of supervisors — the county board, 
board of county commissioners. 

6th. Credits. — Every claim or demand for money, labor, credits, 
interest or other valuable thing, due or to become due, not in- 
cluding money on deposit. 

7th. He. — Male, female, company, corporation, firm, soci-He. 
ety. singular or plural number. 

8th. Money — Moneys. — Gold, silver or other coin, paper Money. 
or other currency used in barter and trade as money, in actual 
possession, and every deposit which the person owning, hold- 
ing in trust, or having the beneficial interest therein, is entitled 
to withdraw in money on demand. 

9th. Number. — The singular number shall include the Number, 
plural, and the plural number shall include the singular. 

10th. Oath. — Oath or affirmation. Oath. 

11th. Person — Persons. — Male, female, corporation, com- person, 
pany, firm, society, singular or plural number. 

12th. Real Property — Real Estate — Land — Tract Real property. 
— Lot. — Not only the land itself, whether laid out in town Ke ai estate, etc. 
or city lots, or otherwise, with all things contained therein, but 
also all buildings, structures and improvements, and other 
permanent fixtures, of whatsoever kind, thereon, and all rights 
and privileges belonging or in any wise pertaining thereto, 
except where the same may be otherwise denominated by this 
act. 

13th. Shares of Stock — Shares of Capital Stock. — shares of stock, 
The shares into which the capital or stock of every incorporated etc ' 
company or association may be divided. 

14th. Tax — Taxes. — Any tax, special assessment or costs, Tax and taxe* 
interest or penalty imposed upon property. 



296 



REVENUE. 



[DIV. VII. 



Counties 
not under 
township 
organization. 



Sec. 293. In all counties not under township organization, 
the county court, or judge of the county court, as the case may 
require, shall perform all the duties required in this act to be 
performed by the county board, or chairman of the county 
board, as the case may be, in such counties, until such time as 
the board of county commission as shall be duly elected and 
qualified in said counties. 



[sections as amended 1874.] 

Original sections, ante, p. 285. 



Where suit 
may be 
brought. 



Duty of auditor Sec. 259. Upon the failure of any collector to make settle- 
coiiector e to ment with the auditor, or to pay money into the State treasury, 
settle. j t shall be the duty of the auditor to sue the collector and his 

sureties upon the bond of such collector, or to sue the collector 
in such form as may be necessary, and take all such proceed- 
ings, either upon such bond or otherwise, as may be necessary 
to protect the interests of the State. 

Sec. 260. When suit is instituted in behalf of the State, it 
may be in either division of the supreme court, or in the San- 
gamon county circuit court, or in any court of record in this 
State having jurisdiction of the amount ; and process may be 
directed to any county in the State. In any proceeding 
against any officer or person, whose duty it is to collect, re- 
ceive, settle for or pay over auy of the revenues of the State, 
whether the proceeding be by suit on the bond of such officer 
or person, or otherwise, the court in which such proceeding is 
pending shall have power, in a summary way, to compel such 
officer or person to exhibit, on oath, a full and fair statement 
of all moneys by him collected or received, or which ought to 
be settled for or paid over, and to disclose all such matters and 
things as may be necessary to a full understanding of the case ; 
and the court may, upon hearing, give judgment for such sum 
or sums of money as such officer or person is liable in law or 
equity to pay. And if in a suit upon the bond of any such 
officer or person, he or his sureties, or any of them, shall not 
for any reason be liable upon the bond, the court may, never- 
theless, give judgment against such officer or person, or against 
such officer and such of his sureties as are liable for the amount 
he or they may be liable to pay, without regard to the form of 
the action or pleadings. 

Sec. 261. When suit has been instituted by the auditor, 
any party aggrieved may proceed under the judgment obtained 
upon the bond, by writ of inquiry of damages, as in other cases 
upon bonds. 



Writ of 
inquiry. 



or,' 



PIV. VII.] AMI IZCTIONS. ZVi 

262. Cities, towns, villages, or corporate authorities or Municipal 
. ° ! n corporations 

ygneved, may prosecute suit against any collector or andothera 

other officer collecting or receiving funds for their use, by suitgjjf 1 * ou 

I he bond, in the name of the People of ths State of Illi- 
nois, for their use, in any court of competent jurisdiction, 
whether the bond has been put in suit at the instance of the 
auditor or not ; and in case of judgment thereon the auditor 
may, if he shall so elect, have a writ : of inquiry of damages for 
any amount that may be due to the State treasury from such 
officer. Cities, towns, villages and other corporate authorities 
or persons shall have the same rights in any suits or pvoceed- 

in their behalf as is provided in case of suits by or in 
behalf of the State. 



[sections as amended 1875.] 
RULES FOR VALUING PERSONAL PROPERTY. 

Sec. 3. Personal property shall be valued as follows : personal 

First — All personal property, except as herein otherwise property. 
directed, shall.be valued at its fair cash value. Fair cash value. 

Second — Every credit for a sum certain, payable either in 
money or labor, shall be valued at a fair cash value for the 
sum so payable ; if for any article of property, or for labor or 
services of any kind, it shall be valued at the current price of 
such property, labor or service. 

Third — Annuities and royalties shall be valued at their then Annuities- 

. . I i J royalties. 

present total value. 

Fourth — The capital stock of all companies and associations 
now or hereafter created under the laws of this State, shall v Sued by C ' 
be so valued by the state board of equalization as to ascertain and state board - 
determine, respectively, the fair cash value of such capital stock, 
including the franchise, over and above the assessed value of the 
tangible property of such company or association. Said board 
shall adopt such rules and principles for ascertaining the fair JJJigg 1 adopt 
cash value of such capital stock as to it may seem equitable 
and just; and such rules and principles, when so adopted, if 
not inconsistent with this act, shall be as binding and of the 
same effect as if contained in this act, subject, however, to 
such change, alteration or amendment as may be found from 
time to time to be necessary by said board : Provided, that in f™™- 
all cases where the tangible property or capital stock of any property. 



298 



REVENUE 



[div. VII. 



Banks 
excepted. 



Manufacturing 
and other cor- 
porations — 
how assessed. 



company or association is assessed under this act, the shares 
of capital stock of any such company or association shall not 
be assessed or taxed in this State. This clause shall not 
apply to the capital stock or shares of capital stock of banks 
organized under the general banking laws of this State. Pro- 
vid( d farther , that in assessing companies and associations or- 
ganized for purely manufacturing purposes, or for printing or 
for publishing of newspapers, or for the improving and breed- 
ing of stock, the assessment shall be so made that such com- 
panies and associations so organized shall only be assessed as 
individuals under like circumstances would be assessed, and no 
more; and such companies and associations shall be allowed 
the same deductions as are allowed to individuals. 



[Sections as amended 1877.] 
kind of funds taken for taxes. 



County 
revenue. 



Sec. 154. The county revenue shall be collected in gold 
and silver coin, United States legal tender notes, current 

Kind of money. na -tional bank notes, county orders and jury certificates, and 
in no other currency. The revenue for State purposes shall be 

state revenue, collected in gold and silver coin, United States legal tender 
notes, current national bank notes, and auditor's warrants, and 

city revenue, in no other currency. The revenue for city purposes shall be 
collected in gold and silver coin, United States legal tender 
notes, current national bank notes, city comptrollers', city 
auditors', or city clerks' warrants or orders on the city treas- 
urer, and in no other currency. State taxes levied for any 
special purpose, other than to defray the ordinary expenses of 
the State Government, shall be collected in gold and silver 
coin, United States legal tender notes, current national bank 

ah other taxes, notes and in no other currency. All other taxes shall be col- 
lected in gold and silver coin, United States legal tender notes 
and in current national bank notes and in no other currency 
unless specially provided for." 



Special state 
taxes. 



RETURN AS TO REAL ESTATE TAX. 



Collector's 
Return. 



List of real 
estate. 



Sec. 172. Each town or district collector, in counties, 
under township organizations, shall at the same time make out 
and deliver to the County Collector, a list of the real estate in 
his town or district, on which the taxes remain due and un- 
paid, describing the same as in the tax book set forth giving 
the names of the persons to whom listed and the amount of each 



MY. VII.] AMENDED SECTIONS. 298^ 

kind of tax charged thereon, and shall swear to the correctness oath, list of 
of such list, and that the taxes therein set forth remain due and uul>aid taxos - 
unpaid. And in counties not under township organization, it^^tow?- 
shall be the duty of the district collector to make return of the ship organiza- 
taxes uncollected in his hands to the County Collector under 
oath in the manner hereinbefore stated. Provided, That in Provls0) total 
making out such list, he shall return only the total amount of amount rc- 

1 •• a i • j iin turned — tax 

each kind of taxes remaining due and unpaid, and shall ac- books. 
company such return with the tax books in his hands, which 
shall be made a part of his report. Whereupon the County 
Collector shall at once proceed to the collection of the taxes county coiiec- 

r . , . , tor to collect. 

appearing upon said tax books as unpaid in the manner now 
provided by law for the collection of delinquent taxes." 

COUNTY COLLECTOR — POWERS. 

Sec. 181. County Collectors shall have the same powers how to collect 
and may proceed in the same manner for the collection of any tax - 
tax on real or personal property, as town or district collectors ; 
and if in any town or collection district the office of town or 
district collector is, or shall become vacant, and such vacancy vacancy, 
shall not be filled before the tenth day of March next following 
such vacancy, or, if in any town or collection district the books Books not 
for the collection of taxes for any reason have not been, or 
shall not be delivered to the town or district collector before 
the tenth day of March, in any year next ensuing after the mak- 
ing out such books, the County Clerk of the county wherein 
such town or collection district is situated shall deliver all such 
collector's books to the county collector of such county, hav- 
ing annexed to each of such books a warrant, under the hand Warrant - 
and official seal of the County Clerk, commanding such 
county collector to collect from the several persons 
named in such books the several sums of taxes therein 
charged opposite their respective names, and authorizing 
him in case any person named in such collector's books shall 
neglect or refuse to pay his personal property tax, to collect 
the same by distress and sale of the goods and chattels of such Distress and 
person. It shall, thereupon, be the duty of such county col- sa 
lector to collect and pay over all taxes, assessments and other Dut y of county 
charges shown in such books, and to do all acts required of collector. 
him by law, in like manner as if such taxes, assessments and 
other charges had been duly returned delinquent by a town or 
district collector. The collector's books, so delivered to the collectors' 
County Collector by the County Clerk shall for all purposes of.° vS 
in all subsequent proceedings be used in lieu of, and have the 



REVENUE. 



[div. VII. 



same force and effect as the statement of uncollected taxes on 
personal property, and list of real estate, on which the taxes 
remain due and unpaid, provided by law to be made out by 
town and district collectors." 



APPEALS — DEPOSIT BEFORE APPEAL GRANTED. 

Sec. 192. Appeals from the judgment of the Court may 
be taken during the same term to the Supreme Court on the 
party praying an appeal executing a bond to the people of the 
State of Illinois, with two or more sureties to be approved by 
the Court, in some reasonable amount to be fixed by the 
Court, conditioned that the appellant will prosecute his said 
appeal with effect, and will pay the amount of any tax assess- 
ment, and cost which may finally be adjudged against the real 
estate involved in the appeal by any Court having jurisdiction 
of the cause. But no appeal shall be allowed from any judg- 
ment for the sale of- lands or lots for taxes, nor shall any writ 
of error to reverse such judgment operate as a supersedeas, 
unless the party praying such appeal or desiring such a writ 
of error, shall before taking such appeal or suing out such 
writ of error, deposit with the County Collector an amount of 
money equal to the amount of the judgment and costs. If in 
case of an appeal, or suing out a writ of error, the judgment 
shall be affirmed in whole or in part, the Supreme Court shall 
enter judgment for the amount of the taxes with damages, not 
to exceed ten per cent., and order that the amount deposited 
with the Collector, as aforesaid, or so much thereof as may be 
necessary, shall be credited upon the judgment so rendered, 
and execution shall issue for the balance of said judgment, 
damages and costs. The Clerk of the Supreme Court shall 
transmit to said County Collector, a certified copy of the or- 
der of affirmance, and it shall be the duty of the Collector, up- 
on receiving the same, to apply so much of the amount depos- 
ited with him, as aforesaid, as shall be necessary to satisfy the 
amount of the judgment of the Supreme Court, and to ac- 
count for the same as collected taxes. If the judgment of the 
County Court shall be reversed and the cause remanded for a 
rehearing, and if upon the rehearing, judgment shall be ren- 
dered for the sale of the lands or lots for the taxes, or any 
part thereof, and such judgment be not appealed from, or a 
writ of error prosecuted with supersedeas .issued thereon, as 
herein provided, the Clerk of the County Court shall certify 
to the County Collector the amount of such judgment, and 
thereupon it shall be the duty of the County Collector to cer- 



PIV. VII.] AMENDED SECTIONS. 298tf 

tify to the County Clerk the amount deposited with him, as certify deposit. 
aforesaid, and the County Clerk shall credit the said judgment 
with the amount of such deposit, or so much thereof as will 
satisfy the judgment, and the County Collector shall be charge- 
able with, and accountable for, the amount so credited, as 
collected taxes. Nothing herein contained shall be construed 
as requiring an additional deposit in case of more than one No additional 
appeal or writ of error being prosecuted in said proceedings. de P° slt - 
If, upon a final hearing, judgment shall be refused for the sale judgment for 
of lands or lots for the taxes, or any part thereof, the Collector sale reiused_ 
shall pay over to the party who shall have made said deposit, 
or his legally authorized agent or representatives, the amount 
of the deposit, or so much thereof as shall remain after the sat- deposit 
isfaction of the judgment against the premises in respect of returned, 
which such deposit shall have been made. 

PROCEEDINGS IN APPEAL CASES. 

Sec. 193. In all cases of appeal to the Supreme Court 
from the judgment of the County Court for any taxes or as- 
sessments levied upon real estate, the Supreme Court may 
render judgment against all the lots and lands, or any partic- Judgment 
ular lot or tract of land embraced in the appeal, for so much a s ainstlands - 
or such part of the taxes and assessments, or any particular 
tax or assessment, it may find to be legally charged against Remit illegal 
the same; and in case it shall find any part of the taxes ©re- 
assessments, or any particular tax or assessment, charged 
against the same, has not been legally charged, it may either 
remit said taxes or assessments or particular tax or assessment 
so found to be illegally charged, or may reverse so much or 
such part of the judgment of the County Court as relates to 
said taxes or assessments, or particular tax or assessment, so 
illegally charged, and remand the same to said inferior court, 
that other proceedings may be had thereon. When the judg- 
ment of an inferior court shall have been, or shall be, affirmed Judgment 
by the Supreme Court, or when judgment shall be rendered by affirmed, 
the Supreme Court against any lot or tract of land embraced 
in such appeal, it shall be the duty of the Clerk of the Su- 
preme Court to make out and deliver to the County Clerk of 
the county from which such appeal is taken, a record of the Record of 
lands and lots against which judgment is rendered or affirmed, lands - 
which shall set forth the name of the owner, if known, the 
description of the property, the total amount of the judgment Description, 
on each tract or lot, and shall attach thereto a copy of the ord 

order of the Supreme Court and his certificate that such 



298tf 



REVENUE. 



fDIV. VII. 



Sale of lands. 



record is correct, which shall be filed in the office of said 
County Clerk, and shall be the process on which such real es- 
tate, or any interest therein, shall be sold for such taxes or 
assessments, or particular tax or assessment, as well as the 
record for the sale thereof ; and it shall be the duty of the 
County Collector, assisted by the County Clerk, to proceed 
and sell the same for the amount of such judgment and costs 
in the manner provided, when judgment is rendered by the 
County Court again-:t delinquent real estate. The Collector 
Publish notice, shall publish a general notice of such sale in a newspaper 
published in his county, if any such there be, and if there be 
no such paper published in his county, then in the nearest 
newspaper published in the State, to the county seat of such 
county ; said notice to be so published once in such newspa- 
per at least three weeks previous to the day fixed for such sale. 
Upon the dismissal of any appeal and upon filing in the office 
of the County Clerk of the county from which the appeal is 
taken, a certified copy of the order of such dismissal, the 
County Clerk shall make a record of the lands and real es- 
tate embraced in such appeal, which shall be the process on 
which the real estate embraced in such appeal shall be sold ; 
and it shall be the duty of the County Collector to proceed 
and sell the same in the manner provided hereinbefore in cases 
of judgment rendered against real estate by the Supreme 
Court on the hearing of an appeal. In all cases of appeals 
heretofore taken, or which may hereafter be taken, to the Su- 
preme Court from the County Court refusing judgment, and 
the decision of the County Court, has been or shall be re- 
versed, and the County Court has been, or shall hereafter be, 



Time. 

Dismissal of 
appeal. 



Copy of order. 



Sale of lands. 



Judgment- 
certified order. 



by the order of the Supreme Court, directed to enter judg- 
ment against the real estate embraced in said appeal, it shall 
be the duty of the Clerk of the Supreme Court to make and 
deliver to the County Clerk of the county from which such 
appeal was or may be taken, a record thereof, and embracing 
all other matters as in cases of a judgment being rendered by 
the Supreme Court ; and the County Court shall upon the 
presentation of such certified record render judgment thereon, 
as directed by the Supreme Court, and like proceedings shall 
be had upon such record to the sale and collection of said 
judgment. In all cases where any appeal has been taken to 
the Supreme Court from the judgment of the Circuit Court 
for any tax or assessment, and such judgment shall have been 
or may be affirmed, like proceedings shall be had. as near as 
may be, for the notice, sale and redemption, as if such ap- 
peals hod been taken from the County Court. 



DIV. VIII.] ELECTORS OF PRESIDENT AND VICE-PRESIDENT. 299 



elec- 
traus- 



DIVISION VIII. 

ELECTIONS. i AppR r l E «?> 

April 3, 1872. 

ELECTORS OF PRESIDENT AND VICE-PRESIDENT OF THE UNITED 

STATES. 

Section 1. There shall be elected, by general ticket, on the Electors of 
Tuesday next after the first Monday in November preceding ^-president, 
the expiration of the term of office of each president of the 
United States, as many electors of president and vice-presi- 
dent of the United Strtes as this State may be entitled to 
elect — which election shall be conducted and returns thereof 
made, as hereinafter provided : Provided, that if Congress Proviso, 
should hereafter fix a different day for such election, then the 
election for electors shall be held on such day as shall be 
named by act of Congress. (1) 

Sec 2. The county clerks of the several counties shall, within Abstract of 
eight days next after holding an election for electors of presi- J^jj °^ 
dent and vice-president of the United States, as is provided mitted to the 
for in this act, make three copies of the abstract of votes f or s° vernor - 
electors, and transmit by mail one of said copies to the gov- 
ernor, another to the office of the secretary of state, and retain 
the third in his office, to be sent for by the governor in case 
both the others should be mislaid. Within twenty days after Governor with 
the holding of such election, and sooner if all the returns are cers to canvass 
received by either the governor or by the secretary of state, the Jeclare^he 
secretary of state, auditor of public accounts and treasurer, or result 
any two of them, shall in the presence of the governor, pro. 

"" (1) The Constitution of the United States, Article II., Section 2, has made the fol* 
lowing provision concerning the electors of president and vice-president: 

" Each State shall appoint, in such manner as the legislature thereof may direct, a 
number of electors equal to the whole number of senators and representatives to 
which the State may be entitled in the Congress ; but no senator or represensative, 
or person holding an office of trust or profit under the United States shall be ap- 
pointed an elector." 

Concerning the meeting of electors of president and vice-president, the Constitu- 
tion provides as follows (Article II.. Section 4): 

. " The Congress may determine the time of choosing the electors and the day on 
which they shall give their votes, which day shall be the same throughout the United 
States." 

Congress, by act of January 23, 1845, has provided that the election for electors of 
president and vice-president shall be on Tuesday after the first Monday in Novem- 
ber, and by act of March 1, 1792, that the day of giving their votes for president and 
vice-president shall be the first Wednesday in December. 



20 



300 



ELECTIONS. 



[div. VIII. 



Tie vote, how 
decided. 



ceed to open and .canvass said election returns, and to declare 
the persons having the highest number of votes elected ; but 
should any two or more persons be returned with an equal 
and the highest vote, the said secretary of state shall cause a 
notice of the same to be published, which notice shall name 
some day and place, not less than five days from the time of 
the publication of such notice, upon which the said secretary, 
auditor and treasurer will decide, by lot, which of said persons 
so equal and highest is elected. And upon the day, and at 
the place so appointed in said notice, the said secretary, audi- 
tor and treasurer, or any two of them, shall, in the presence of 
the governor, decide, by lot, which of the persons so equal and 
highest shall be elected. 

Sec. 3. The governor shall cause the result of the said election 
to be published, and shall transmit by mail to the persons 
elected certificates of their election. 

Sec. 4. The electors chosen, as aforesaid, shall meet at the seat 
of government of this state, at the time appointed by the laws 
of the United States, and give their votes in, in the manner 
therein provided, and perform such duties as are or may be 
required by law. Each elector shall receive for every twenty 
miles necessary travel in going to the seat of government to 
give his vote, and returning to his residence, to be computed 
by the most usual route, the sum of three dollars, to be paid 
on the warrant of the auditor, out of any money in the treasury 
not otherwise appropriated. 

Sec. 5. In case any person declared duly elected an elector of 
president and vice-president of the United States shall fail to 
attend at the state house, at the seat of government of this 
State, at or before the hour of twelve o'clock, at noon, of the 
day on which his vote is required to be given, it shall be the 
duty of the elector or electors of president and vice-president, 
attending at that time and place, to appoint a person or per- 
sons to fill such vacancy : Provided, that should the person or 
persons chosen by the people, as aforesaid, arrive at the place 
aforesaid before the votes for president and vice-president are 
actually given, the person or persons appointed to fill such 
vacancy shall not act as elector of president and vice-presi- 
dent. 



Governor to 
cause result to 
be published. 



Electors to 
meet and give 
their votes. 



Compensation 
of electors. 



Vacancy in 
electoral col- 
lege, how 
.filled. 



Proviso. 



TIME OF HOLDING ELECTIONS FOR CERTAIN OFFICERS. 



Representa- 
tives in Con- 
gress. 



Sec. 6. Representatives in Congress shall be elected on Tues- 
day next after the first Monday in November, A.D. eighteen 
hundred and seventy -two, and every two years thereafter: 



PIV. VIII.] TIME OF HOLDING ELECTIONS FOR CERTAIN OFFICERS. 301 

but if Congress shall fix a different day, then such election 
shall be held on the day so fixed by Congress. 

Sec. 7. The governor, lieutenant-governor, secretary of state, Time of eiec- 
auditor of public accounts and attorney -general, shall be oSce°rsf tate 
elected on Tuesday next after the first Monday of November, 
A.D. eighteen hundred and seventy-two, and every four years 
thereafter. 

Sec. 8. The superintendent of public instruction shall be sup't of public 
elected on Tuesday next after the first Monday of November, ^ruction. 
A.D. eighteen hundred and seventy - four, and every four 
years thereafter. 

Sec. 9. The state treasurer shall be elected on Tuesday next state treasurer. 
after the first Monday of November, A.D. eighteen hundred 
and seventy-two, and every two years thereafter. 

Sec. 10. The judges of the supreme court shall hereafter be Election for 
elected as follows, to wit: In the first, second, third, sixth and j^eme court, 
seventh districts on the first Monday of June, A.D. eighteen 
hundred and seventy-nine, and every nine years thereafter. 
In the fourth district, on the first Monday of June, A.D. 
eighteen hundred and seventy-six, and every nine years there- 
after. In the fifth district, on the first Monday of June, 
A.D. eighteen hundred and seventy-three, and every nine 
years thereafter. 

Sec. 11. A clerk of the supreme court in each grand divi- Clerks of su- 
sion shall be elected on Tuesday next after the first Monday preme court - 
of November, A.D. eighteen hundred and seventy-two, and 
every six years thereafter. 

Sec. 12. The judges of the circuit court shall be elected on For judges of 
the first Monday of June, A.D. eighteen hundred and seventy- circuit court ' 
three, and every six years thereafter. 

Sec. 13. The judges of the superior court of Cook county isw 1 873, 
shall be elected as follows : One on Tuesday next after the JK e JI. ed " 
first Monday of November, in the year of our Lord eighteen For judges of 
hundred and seventy - three, and every six years thereafter ; £our?of cook 
one on Tuesday next after the first Monday of November, in C0UIlt y- 
the year of our Lord eighteen hundred and seventy-five, and 
every six years thereafter; and one on Tuesday next after the 
first Monday of November, in the year of our Lord eighteen 
hundred and seventy-seven, and every six years thereafter. 

Sec. 14. State senators shall be elected as follows, to wit : For state sena- 
Those in districts bearing even numbers shall be elected on tors * 
Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy -two, and every four years 
thereafter. Those in districts bearing odd numbers shall be 
elected on Tuesday next after the first Monday of November, 



302 



ELECTIONS. 



[diy. veil 



A.D. eighteen hundred and seventy-two. for the term of two 
years. And after that they shall be elected on Tuesday next 
after the first Monday of November, A.D. eighteen hundred 
and seventy-four, and every four years thereafter. 
For members Sec. 15. Members of the house of representatives shall be 
represent- elected on Tuesday next after the first Monday of November, 
A.D. eighteen hundred and seventy-two. and every two years 
thereafter. 

Sec. 16. The county judges and county clerks shall be elected 
on Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy - three, and every four years 
thereafter. 

Sec. 17. The sheriffs and coroners shall be elected on 
Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy-two. and every two years there- 
after. 

Sec. 18. The clerks of the circuit court shall be elected 
on Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy -two, and every four years 
thereafter. 

Sec. 19. The clerk of the superior court of Cook county 
shall be elected on Tuesday next after the first Monday of 
November. A.D. eighteen hundred and seventy -five, and 
every four years thereafter. 

Sec. 20. The clerk of the criminal court of Cook county 
shall be elected on Tuesday next after the first Monday of 
November. A.D. eighteen hundred and seventy -three, and 
every four years thereafter. 

Sec. 21. The county treasurers shall be elected on Tuesday 
next after the first Monday of November, A.D. eighteen hun- 
dred and seventy - three, and every two years thereafter. 

Sec. 22. The county surveyors shall be elected on Tuesday 
next after the first Monday of November. A.D eighteen hun- 
dred and seventy-five, and every four years thereafter. 

Sec. 23. The county superintendents of schools shall be 
elected on Tuesday next after the first Monday of November, 
A.D. eighteen hundred and seventy - three, and every four 
years thereafter. 

Sec. 24. A state's attorney shall be elected in each county 
on Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy -two, and every four years 
thereafter. 

Sec. 25. There shall be elected in each congressional dis- 
trict on Tuesday next after the first Monday of November, 
A.D. eighteen hundred and seventy -two, and every four 



For county 
judge and 
county clerk. 



For sheriffs 
and coroners. 



For clerks of 
circuit court. 



For clerk of 
superior court. 



Clerk of crim- 
inal court of 
Cook county. 



County 

treasurers 



County sur- 
veyor. 



County sup't of 
schools. 



State's attor 
ney. 



State board of 
equalization. 



DIV. VIII.] JUDGES AND CLERKS OF ELECTION. 303 

years thereafter, one elector, to serve as a member of the state 
board of equalization. 

Sec. 26. In counties having a population of sixty thousand Recorder of 
or more, there shall be elected a recorder of deeds, on Tuesday deeds ' 
next after the first Monday of November, A.D. eighteen hun- 
dred and seventy -two, and every four years thereafter. 

Sec. 27. In counties not under township organization, there county asses- 
shall be elected on Tuesday next after the first Monday of sor * 
November, A.D. eighteen hundred and seventy - three, and 
every two years thereafter, a county assessor, who shall hold 
his office for two years, and until his successor is elected and 
qualified. 

Sec. 28. In counties not under township organization, there county Com- 
shall be elected on Tuesday next after the first Monday f missioner - 
November, A.D. eighteen hundred and seventy - three, three 
officers, who shall be styled " The Board of County Com- 
missioners," one of whom shall hold his office for one year, 
one for two years, and one for three years, to be determined 
by lot ; and every year thereafter, one such officer shall be 
elected in each of said counties, for the term of three years. 

election precincts. 

Sec. 29. The election precincts established in counties not Election pre- 
under township organization, before the taking effect of this Snot unde?" 
act, shall remain until changed by the county board. ^nfzation 1 " 

Sec. 30. The county board of such counties may, from Boundaries of, 
time to time, change the boundaries of election precincts, and ne^ pr^nSt 
may erect and establish one or more new election precincts, 
and may designate and change the places of holding elections. 
All general and special elections shall be held at the places so 
designated. 

Sec. 31. In counties under township organization, each in counties un 
town shall constitute an election precinct, but the county orgaSlatioif 
board may divide any town into as many election districts as Ife^ioTple- 11 
the convenience of the people may require, defining the same cinct. 
by distinct boundaries and numbers, and may, from time to 
time, designate the places at which elections shall be held. 
All general and special elections shall be held at the places 
so designated. 

JUDGES AND CLERKS OF ELECTIONS. 

Sec. 32. In counties not under township organization, the Judges and 
county board shall, annually, at its last regular session pre-tion8. sofeleC " 



vice. 



804 ELECTIONS. [DIV. Villi 

in counties not ceding the general election, appoint three capable and discreet 
organizaSoru ip e ^ ectors to act as judges °f election in each election precinct, 

and may at any time fill vacancies. (1) 
in counties un- Sec. 33. In counties under township organization, where 
oSanSion* * ne county board shall have divided a town into several elec- 
county bd. .to tion districts, it shall, at its last regular session preceding the 
of election in general election, appoint three capable and discreet electors to 
new districts. ac ^ ag j uc [g es of election in each election district in such town, 
Proviso as to and may at any time fill vacancies : Provided, that the super- 
appointed, visor, assessor and collector shall be designated as judges of 

election in the districts in which they respectively reside. 
Notice of ap- Sec. 34. Immediately on the appointment of such judges, 
pom ent. ^ e countv c i er k shall make out and deliver to the sheriff of 
the county a notice thereof, directed to each person so ap- 
pointed, and the sheriff shall, within twenty days after the 
receipt of such notices, deliver the same to the several judges 
so appointed. 
Termofser- Sec. 35. The judges so appointed shall be and continue 
judges of all general and special elections held within their 
respective precincts or districts, until other judges shall be 
appointed in like manner. 
Vacancies, how Sec. 36. If, at the time for the opening any election, any 
fiUed. person appointed or constituted a judge of election shall not 

be present, or will not act or take the oath to act in such 
capacity, the judge or judges present may appoint some other 
qualified elector to act in his place. If there be no judge of 
election present, or he refuses to act, such electors of the pre- 
cinct or district as may then be present at the place of election, 
may fill the places of such judges by election from their num- 
ber. The judges so appointed shall have the same power and 
be subject to the same penalties as other judges of election. 
Judges of eiec- Sec. 37. The judges of election shall choose two persons 
poinuSerS* navm g similar qualifications with themselves to act as clerks 
of election, who may continue to act as such during the plea- 
sure of the judges. (2) 

OATH OF JUDGES AND CLEEKS OF ELECTION. 

oath of judges Sec. 38. Previous to any votes being taken, the judges and 
efection. kS ° f clerks of the election shall severally take an oath or affirma- 
tion, in the following form, to wit: 

(1) A person who is a candidate at an election is not thereby disqualified as judge 
of election. Opinion Att'y Gen'l Cole (Minn.), vol. 1, p. 449. 

(2) It is held in New York that the statute requiring the judges of election to 
appoint clerks is directory. If no person can be procured to act in that capacity, the 
election is not to fail. The judges may perform, the duty which ordinarily devolve* 
upon the clerks. People v. Cook, 4 Seld. R., 67. 



DIV. VIII.] CONSTABLES APPOINTED TO ATTEND ELECTIONS. 305 

11 I do solemnly swear [or affirm, as the case may be] that I will 
support the Constitution of the United States and the Constitution of 
the State of Illinois, and that I will faithfully discharge the duties of 
the office of judge of election [or clerk, as the case may be] according 
to the best of my ability." 

Sec. 39. In case there shall be no judge or justice of the oath, by whom 
peace present at the opening of the election, or in case suc h admimstered - 
judge or justice shall be appointed a judge or clerk of election, 
it shall be lawful for the judges of the election to administer 
the oath or affirmation to each other, and to the clerks of the 
election ; and the person administering such oath or affirmation 
shall cause an entry thereof to be made and subscribed by 
him, and prefixed to each poll book.(l) 

BALLOT BOXES AND POLL BOOKS. 

Sec. 40. The county board shall provide a sufficient num- Ballot boxes, 
ber of ballot boxes, with secure locks and keys, at the expense W ide. sha11 pr0 " 
of the county, for the several precincts and districts. There 
shall be an opening in the lid of each box not larger than is 
sufficient to admit a single closed ballot to be inserted therein 
at one time, through which each ballot voted shall be put into 
the box. 

Sec. 41. The ballot boxes shall be delivered to and kept by Kept by j Udges 
the judges of election, and by them kept and delivered over to ofelection - 
their successors. 

Sec. 42. The county clerk shall provide, at the expense of p n books, who 
the county, proper blank poll books and other necessary elec- sha11 P rovlde - 
tion blanks for each precinct and district in his county, and 
cause a suitable number thereof to be delivered to the judges 
of election, at least ten days before any election is to be held. 

CONSTABLES APPOINTED TO ATTEND ELECTIONS — ORDER. 

Sec. 43. The county board may appoint one or more con- constables to 
stables to attend each place of holding elections and preserve Sons, who may 

, appoint. 

(1) The neglect of the judges or clerks of an election to take the prescribed oath 
does not vitiate an election ; neither does the irregular administration of the oath 
have that effect. An oath irregularly administered — for example, upon a book 
other than the Bible — the parties administering and taking it supposing it to be 
a Bible, is a valid oath. People v. Cook, 4 Seld., R. 67. See Taylor v. Taylor et al., 
10 Minn. R., 107. 

Where the judges and clerks of an election act under color of office, having been 
duly appointed, that is sufficient to constitute them officers de facto, and in such 
case it is immaterial, so far as the validity of their election returns are concerned, 
whether they were sworn at the election or not. The law, in such case, presumes 
them to have been well appointed and qualified. The people ex rel., etc., v. Hilliard, 
29 111. R.. 423. . 

If the officers of election fail to perform their duty, the law provides a penalty, 
but the election is not necessarily rendered void. Taylor v. Taylor et al, 10 Minn. 
R., 107. 



306 ELECTIONS. [DIV. VLLT. 

order during the election ; if no constable is appointed by the 
county board to attend any place of holding election, or if 
others shall be necessary to preserve order, the judges of elec- 
tion may appoint one or more constables for that purpose, 
judges of eiec- Sec. 44. The judges of election may appoint any suitable 
pSmspLSSi person to act as a special constable during the election. Con- 
constabie. stables serving at such election shall be paid out of the county 
treasury, not exceeding two dollars per day for each day's 
service. 
constable may Sec. 45. Any constable attending such election may call to 
suppress disor- j^ ^ a su fg c [ eil t numD er of citizens to arrest any disorderly 
person or suppress any riot or disorder during the election. 
Whoever conducts himself in a riotous or disorderly manner 
at any election, and persists in such conduct after being 
warned to desist, may be arrested without warrant. 

NOTICE OF ELECTION. 

Notice of time Sec. 46. At least thirty days previous to any general elec- 
efectionf 5 ^ ^ on > an( ^ a ^ ^ eas * twenty days previous to any special election, 
except in cases otherwise provided for, the county clerk, in 
counties not under township organization, shall make out and 
deliver to the sheriff of his county, or in counties under town- 
ship organization to the several supervisors of his county, three 
notices thereof for each precinct or district in which the election 
in such county is to be held. The notice may be substantially 
as follows :(1) 

Form of notice. "Notice is hereby given, that on [give the date,] at [give the place 
of holding the election and the name of the precinct or district] in the 
county of [name of county,] an election will be held for [give the title 
of the several offices to be filled,] which election will be opened at eight 
o'clock in the morning and continue open until seven o'clock in the 
afternoon of that day. 

" Dated at this day of , in the year of our Lord 

one thousand eight hundred and . A. B., County Clerk." 

Notice to be Sec. 47. The said sheriff, or supervisor to whom the notices 

Fic S p\ace— time are delivered, shall post up, in three of the most public places 
of posting. in each precinct or district, the three notices therefor at least 
fifteen days before the time of holding a general election, and 
at least eight days before the time of holding a special elec- 
tion. 



(1) If an election be held, without necessity, at a different place from that desig- 
nated by law, the entire poll must be rejected. Chadwick v. Mdvin. Leading Oases 
on Elections, (Brightley) 251. 



DIV. Vni.] CONDUCTING ELECTIONS. 307 

CONDUCTING ELECTIONS — RETURNS. 

Sec. 48. The polls shall be opened at the hour of eight Polls, when 
o'clock in the morning, and continue open until seven o'clock opened ' 
in the afternoon of the same day, at which time the polls shall 
be closed ; but if the judges shall not attend at the hour of 
eight o'clock in the morning, or if it shall be necessary for the 
electors present to appoint judges to conduct the election, as 
herein before prescribed, the polls may, in that case, be open 
at any hour before the time for closing the same shall arrive, 
as the case may require. (1) 

Sec 49. Upon opening the polls, one of the clerks or judges proclamation 
of election shall make proclamation of the same, and at least t0 **> made - 
thirty minutes before the closing of the polls proclamation 
shall be made in like manner that the polls will be closed 
in half an hour.(2) 

Sec. 50. Before any ballot shall be deposited in the ballot- Ballot box to be 
box, the ballot-box shall be publicly opened and exhibited, and nibited. 
the judges and clerks shall see that no ballot is in such box ; 
after which the box shall be locked and the key delivered to 
one of the judges, and shall not be again opened until the 
close of the polls. 

Sec 51. Each clerk of the election shall keep a poll list, Poll list, 
which shall contain a column headed "number," and another 
headed "names of voters." The name of each elector voting 
shall be entered upon each of the poll books by the clerks, in 
regular succession, under the proper headings, and the number 

(1) Tt is held, that although the law may direct that the polls shall be closed at 
a certain hour specified, and this question is in issue, unless it be made to appear 
that votes were cast after that hour, which would change the result, the fact that the 
polls were kept open after that hour would not render the election void. Piatt v. 
The People, 29 111. R., 72. 

It is held in New York that the provision as to the time of opening and closing the 
polls is directory; that, for instance, should the inspectors or judges, being misled 
by a defective time-piece, close the polls a few minutes before a particular hour 
directed by the statute or receive a few votes after that hour, this will not render 
the election void. People v. Cook, 4 Seld. R., 92. 

A court of chancery has no power to prevent the holding of an election of officers, 
upon the alleged ground of a want of authority to hold such an election, the remedy 
therefor being complete at law by writ of quo warranto. The People ex rel. v. Cily of 
Galesburg, 48 111. R., 485. 

While a court of chancery will not interfere to determine which of two persons 
has been elected to office, or try the rights of parties to hold an office, yet, in case of 
an election upon the question of the removal of a county seat, which is claimed to 
have resulted in favor ot removal, if it is alleged that such was not the result, by 
reason of the election being illegally held, or the vote not being a fair one, a court 
of chancery will entertain jurisdiction at the instance of those impeaching the 
election, to determine where the county seat is, although that inquiry may inciden- 
tally involve the question, whether the vote had been fairly taken, and if fraud 
had intervened therein to purge the polls. Boren v. Smith et al., 47 IU. R., 482. Same 
doctrine held in The People ex rel., v. Wiant, 48 111. R., 263. 

(2) The usual form of proclamation of opening and closing the polls is as follows: 
Hear ye : hear ye : hear ye : the polls of this election are now 

open ; or, the polls of this election will be closed in half an hour. 



308 ELECTIONS. [DIV. VIII. 

of such voter placed opposite his name in the column headed 
"number." (I) 
Manner of vot- Sec. 52. The manner- of voting shall be by ballot. The 
ba!tot kmd ° f ballot shall be printed or written, or partly printed and partly 
written upon plain paper, with the name of each candidate 
voted for, and the title of the offices. When the ballot is 
printed, the same shall be printed upon plain paper, in plain 
type, in straight lines, with a blank space below each name, 
of a width not less than equal to the width of the line in which 
the name is printed. (2) 

Sec. 53. The names of all candidates for which the elector 

(1) Neither a heading nor the signature of the inspectors or clerks were required 
to make the poll list admissible, to prove that a person voted. People v. Pease, 27 
N. Y. (13 Smith) R., 45. 

The ballots cast at an election are better evidence than the tally list made from 
them of the number of votes. People v. Holden, 28 Cal. R., 123. 

Inspectors or judges of elections are merely ministerial officers, and their action 
can be reviewed by the courts. People v. Pease, 27 N. Y. (13 Smith) R., 45. 

If votes are cast by duly qualified electors, on a lawful occasion, and at a proper 
place, their effect cannot be defeated by reason of mere official delinquency of the 

iudges in not transmitting them to the county clerk. Bourland v. Hildreth, 26 Cal. 
I., 161. 

And the omission of the judges of election to send a poll book to the county clerk, 
as required by statute, will not cause the rejection of the return from that precinct. 
(Deadt, J., dissenting.) Day v. Kent, Oregon R., 123. 

Where the provisions of the election law have been entirely disregarded by the 
officers, and their conduct has been such as to render their returns utterly unworthy 
of credit, the entire poll will be rejected. But even in such case, legal votes proved 
to have been actuall> polled, must be computed. LUtlefield v. Green, 1 Legal News 
330 (111. R.) See 1 Brewster (Penn.), 60. 

(2) See Const., Art. VII., Sec. 2. 

A single piece of paper, cast as a ballot, and containing the name of a candidate 
more than once, should be counted as one vote, and not rejected as illegally thrown. 
People v. Holden, 28 Cal. R.. 123. 

Ballots containing a greater number of names for an office than the number to be 
elected cannot be canvassed but must be rejected. People v. Adams, 9 Wend. R., 333. 

If a ballot contains the name of two persons for the same office, it is bad as to both ; 
but such a ballot cannot be rejected as to candidates for other offices regularly 
named on the same ballot. Carpenter v. Ely, 4 Wis. R., 420. 

In case of questions arising upon a ballot as to the person or officer voted for, the 
intention of the voter should control, and effect be given thereto. If a ballot desig- 
nate an officer as " police justice," it should be taken as intending "police magis- 
trate." The. People ex rel, etc., v. Matteson, 17 111. R., 167. 

The name of the person for whom the elector intends to vote should be written in 
full upou his ballot. It is held in Michigan, under the like provisions as in the text, 
that a ballot for J. A. Dyer cannot be counted for James A. Dyer ; that such a ballot 
does not contain the name of the person intended to be voted for, but merely the 
initial letters ; and no evidence is admissible to show that such a ballot was intended 
for James A. Dyer. But when, however, the designation of an individual on a ballot 
is by an abbreviation sanctioned by common usage, and universally understood, the 
ballot may be counted for the person for whom it was intended. Thus, a vote for 
Jas. A. Dyer may be counted for James A. Dyer. A slight error in the spelling of a 
name on'a ballot, it is presumed would not prevent a ballot from being counted for 
the person for whom it was evidently intended. People v. Tisdale, 1 Dougl. (Mich.) 
R.. 50 ; People v. Higgins, 3 Mich. R., 233. Carpenter v. Ely, 4 Wisconsin R., 420. 

Ballots cast for Michael Finegan, being of the same sound, it was held should have 
been counted for Michael Finnegan, the person intended. Finnegan v. Mayuorm, 5 
Mich. R., 146. 

Under the law authorizing the election of two court commissioners, an election 
was held, but it was conducted, in all respects, as if only one was to be chosen ; two 
persons were opposing candidates, and each elector voted for one of the two. but in 
no instance did a ballot contain more than one name for this office. It was held 
that only the one receiving the highest number of votes was chosen, and as to the 
other there was a failure to elect. People v. Commissioners of Kent Co., 11 Mich. 
R.,111. 

Ballots upon paper tinged with blue, which has ruled lines, not placed there as 
marks to distinguish the ballots are upon white paper within the meaning of the 
statute. People ex rel. Brewster and Janes v. vuduff fa fn t> .w> 



DIV. VIII.] CONDUCTING ELECTIONS. 309 

intends to vote shall be -written or printed upon the same bal- Names of an 
lot, and the office to which he desires each to be elected shall SJiSSfidi? 
be designated upon the ballot. the same ballot. 

Sec. f>4. In voting for representatives to the General As- For representa- 
sembly, if the voter intends to give more than one vote to any Assembly— mi- 
candidate, he shall express his intention on the face of the "bal- ^JJJStion? 16 " 
lot, in words or figures, which may be done in either of the 
following forms : A. B., C. D., E. F., which shall be held to 
mean one vote for each candidate named ; or A. B. 1 J votes, 
C. D. 1J votes ; or A. B. 2 votes, C. D. 1 vote ; or A. B. 3 
votes. (1) 

Sec 55. The ballot shall be folded by the voter and deliv- Number of per- 
ered to one of the judges of election, and if the judges be ^endorsed on 
satisfied that the person offering the vote is a legal voter, the ballot " 
clerks of election shall enter the name of the voter and his 
number under the proper heading in the poll books, and the 
judges shall indorse on the back of the ticket offered, the 
number corresponding with the number of the voter on the 
poll books, and shall immediately put the ticket into the ballot 
box. 

Sec. 56. After the opening of the polls no adjournment Noadjoum- 
shall be had, nor shall any recess be taken, until all the votes JJjgf of the 
cast at such election shall have been counted and the result 
publicly announced. 

Sec. 57. Immediately upon closing the polls, the judges Mode of can- 
shall proceed to canvass the votes polled. They shall first yolls? 8 the 
count the whole number of ballots in the box. If the ballots 
shall be found to exceed the number of names entered on each 
of the poll lists, they shall reject the ballots, if any be found 
upon which no number is marked ; if the number of ballots 
still exceeds the number of names entered on each of the 
poll -lists, they shall be replaced in the box and the box 
closed and well shaken and again opened, and one of the 
judges shall publicly draw out and destroy so many ballots 
unopened as shall be equal to such excess ; and the ballots or 
poll lists agreeing or being made to agree, the board shall 
proceed to count, and estimate and publish the votes ; and 
when the judges of election shall open and read the tickets, 
each clerk shall carefully mark down upon the tally -list the 
votes each candidate receives, in a separate column prepared 
for that purpose, with the name of such candidate at the head 
of such column, and the office designated by the votes such 
candidate shall fill. 

(1) See Const., Art. IV., Sees. 7 and 8. 



310 



ELECTIONS. 



[DIV. VIII. 



When vote not 
counted. 



Ballots— how 
preserved. 



When de- 
stroyed. 



Proviso in case 
of contested 
election. 



Contested elec- 
tions. 



Clerks to make 
entry of the 
result of the 
canvass. 



Sec. 58. If more persons are designated for any office than 
there are candidates to be elected, or if more votes or parts of 
votes are designated on any ballot for representatives than the 
voter is entitled to cast, such part of the ticket shall not be 
counted for either of the candidates. 

Sec 59. All the ballots counted by the judges of election 
shall, after being read, be strung upon a strong thread or 
twine, in the order in which they have been read, and shall 
then be carefully enveloped and sealed up by the judges, who 
shall direct the same to the officer to whom, by law, they are 
required to return the poll books, and shall be delivered, 
together with the poll books, to such officer, who shall care- 
fully preserve said ballots for six months, and at the expiration 
of that time shall destroy them by burning, without the package 
being previously opened : Provided, if any contest of election 
shall be pending at such time in which such ballots may be 
required as evidence, the same shall not be destroyed till such 
contest is finally determined. 

Sec. 60. In all cases of contested election, the parties con- 
testing the same shall have the right to have the said package 
of ballots opened, and said ballots referred to by witnesses for 
the purpose of such contest. But said ballots shall only be 
so examined and referred to in the presence of the officer 
having the custody thereof. 

Sec. 61. When the votes shall have been examined and 
counted, the clerks shall set down in their poll books the name 
of every person voted for, written at full length, the office for 
which such person received such votes, and the number he did 
receive, the number being expressed in words at full length ; 
such entry to be made, as nearly as circumstances will admit, 
in the following form, to wit : 



Form of entry. 



in the year of our Lord one 
the following named, persons 



"At an election held at , in the countv of , and State 

of Illinois, on the day — 

thousand eight hundred and — 

received the number of votes annexed to their respective names, for 
the following described offices, to wit : [name of candidate] had 
[number of votes] for [title of office], and in the same manner for 
any other persons voted for. 

" Certified bv us : 

A. B.) 

C. D. \ Judges of Election. 
E. F.J 
"Attest : G. H. j CM . g Q j mection y 



Sec 62. Such certificate, together with one of the lists of 
voters, and one of the tally papers, having been carefully 



IUV. VIII.] QUALIFICATION OF VOTERS. 311 

enveloped and sealed up, shall be put into the hands of one of 
the judges or board of election, who shall, within four days 
thereafter, deliver the same to the county clerk or his deputy, 
at the office of said county clerk ; and when received, such 
clerk or deputy shall proceed to open, canvass and publish the 
return from each precinct or election district, as provided by 
law. 

Sec. 63. The judges and clerks of election shall be allowed p er diem of 
the sum of three dollars each per day for their services in{.\^gj and 
attending each election, and the judge who carries the said 
returns to the county clerk shall also receive five cents per 
mile, each way. 

Sec. 64. The judges of election shall allow at least one, challengers, 
and not more than two legal voters of each party to the contest, 
to be chosen by the parties respectively, into the room where 
the election is held, to act as challengers of voters at such 
election ; and such challengers may remain with the board of 
election until the votes are all canvassed and the result 
declared. 

QUALIFICATION OF VOTERS. 
Sec. 65. Every person having resided in this State one Qualification of 

vofprs — Rg^i- 

year, in the county ninety days, and in the election district dence. 
thirty days next preceding any election therein, w T ho was an 
elector in this State on the first day of April in the year of 
our Lord one thousand eight hundred and forty -eight, or 
obtained a certificate of naturalization before any court of 
record in this State - prior to the first day of January, in the 
year of our Lord one thousand eight hundred and seventy, or 
who shall be a male citizen of the United States above the age 
of twenty -one years, shall be entitled to vote at such elec- 
tion.^) 

(1) See Const., Art. VTI., Sec. 1. Each State has the undoubted right to prescribe 
the qualifications of its own voters. In the absence of some provision to that effect, 
the act of naturalization would not of itself confer on the persou naturalized the 
right to exercise the .elective franchise. The qualification of a voter at a Congres- 
sional election depends on the law of the State in which the elective franchise is 
exercised, and is dependent on the municipal regulations oif the State. Spragins v. 
Houghton, 2 Scam. R., 395. 

Former decisions to the effect above, must of course be taken subject to the provi- 
sions of the 15th amendment to the Constitution of the United States. 

Unless the legislature shall make citizenship an indispensable qualification to the 
enjoyment, of the elective franchise, and the Constitution clearly admits of the 
exercise of that power by that body, the supreme court cannot add such a prerequi- 
site by construction. Spragins v. Houghton, 2 Scam. R 409. 

Under the act of Congress of 1802, conferring jurisdiction upon certain courts for 
the purpose of naturalization, only courts of record for general and not for special 
purposes, were intended to be embraced within its provisions. " The Marine Court of 
the city of New York " is not a court of record within the meaning of the act of Con- 
gress conferring jurisdiction upon courts of record to admitaliens to citizenship ; and 
hence a person so admitted by an order of that court does not become a qualified 



312 ELECTIONS. [DIV. VILT. 

Permanent Sec. 66. A permanent abode is necessary to constitute a 

conSmtesresi- residence within the meaning of the preceding section. (1) 

dence. ■ 

elector, and cannot maintain an action, under the act of 1849, for rejection of his 
vote. Mills el al. v. McCabe, 44 111. R., 194. 

The question whether the person offering to vote is a naturalized foreigner or an 
inhabitant, and entitled to vote, the judges of election have no right to investigate, 
tinder the existing laws. If such person takes the oath prescribed in the law, the 
duty is imperative upon the judges to receive his vote unless the oath is proved to 
he false. Spragins v. HougMon, 2 Scam. K.. 416. If, however, the judge should of his 
own knowledge know the oath to be false, he would not be liable to the penalty 
under section 20 should he refuse to receive the vote for that reason. Mills et al. v. 
j)/cCabe,44Ill. R., 194, 

(1) The term inhabitant is derived from the Latin habito, and signifies live in, to dwell 
In : and is applied exclusively to one who lives in a place, and has there a fixed and 
legal settlement. The residence, however, is to be bona fide, and not casual or tem- 
poral. Spragins v. Houghton, 2 Scam. R., 396. 

The residence is a question of intention from all the facts and circumstances in each 
case. Kitchell v. Burgwin et ux., 21 111. R., 44; Ives v. Mills, 37 111. R., 75 : Waltus v. 
The People, 21 111. R., 174, 178. 

Residence and habilancy are generally synonymous. A residence is different from 
a domicil, although it is a matter of great importance to determine the place of 
domicil. Residence indicates permanency of occupation, as distinct from lodging, or 
hoarding, or temporary occupation, but does not include so much as domicil. which 
requires an intention continued with residence. Bouv. Law Diet, " Residence." 

A domicil may be defined " a residence at a particular place, accompanied with 
positive or presumptive proof of continuing it an unlimited time," and is a conclu- 
sion of law on an extended view of facts and circumstances. Grier v. 0' Daniel, 1 
Binn, R., 352. 

A resident is a person coming into a place with an intention to establish his domi- 
cil or permanent residence, and actually executing that intention by taking a home 
or lodging, opening a store or the like. United States v. The Penelope, 2 Peters Adm. 
JR.. Dec. 450. 

Residence is a question of intention. By a removal out of the Slate, without an 
Intention permanently to reside elsewhere.'a person will not lose his residence, nor 
■svill he acquire one by a mere intention to remove permanently, not followed by 
actual removal . Casey's Case, 1 Ash. R., 126. 

To effect a change of domicil there ,must be intention and act united. 2 Kent 
Com., 43 ; Crawford v. Wilson, 4 Barb. R., 504. 

To effect a change of residence, it is not enough that one intends to change it, and 
believes he has done in law what amounts to a change. The intent and fact must 
concur, and his opinion cannot produce the result. Chaine v. Wilson, 8 Abbot's 
Pr., 78 ; Smith v. People ex rel., 44 111. R., 22. 

If a person goes out of a State, county, or town, for a particular purpose, and does 
cot take up a permanent residence elsewhere, he cannot be considered as having 
removed from the State, county or town, so as to affect his domicil and inhabitancy. 
Sears v. City of Boston, 1 Mete. R., 250; Socket's Case, IMass. R., 58 ; Abingiony. Boston, 
A Mass. R., 312. 

A man's domicil is not changed by an absence for a temporary purpose, with or 
without his family. Cadivalader v. Howell, 3 Harr. R., 138 ; State v. Judge, 13 Ala. R., 805. 

A person's home or domicil is his habitation fixed in any place, without any pre- 
sent intention of removing therefrom. Putnam v. Johnson, 10 Mass. R., 488. 

A domicil once fixed will continue, notwithstanding the absence of the party, 
until a new domicil is acquired. Jennison v. Hapgood, 10 Pick. R.. 77. 

A domicil once acquired is presumed to continue until a new one is obtained, in 
fact and by intention. Glover v. Glover, 18 Ala. R., 365. 

Unless one's change of demicil is complete and final, it does not constitute an 
abandonment of one's countrv. Hardy v. DeLeon, 5 Texas R., 211 ; Brown v. Smith, 
11 Eng. Law and Eq.,6 ; Leach'v. Pillsbury, 15 N. H. R., 137. 

E'ery person has a domicil of origin, which he retains until he acquires another, 
and the one thus acquired is in like manner retained. Thorndike v. City of Boston, 1 
Mete. R„ 242 ; Ktibum v. Bennett, 3 Mete. R., 199. 

A person having a legal settlement in one place, that settlement continues until 
another is acquired in the Mate. A settlement in another State or county will not 
change that acquired in this State, if he returns to it. Payne v. Town of Dunham, 29 
111. R., 129. 

To constitute a change of residence from one election district to another, there 
must be an actual removal. McDanieVs Case, 3 Penn. Law Journal, 310. 

Residence within the meaning of the Constitution, as a legal qualification of an 
elector, is synonymous with domicil, and means the place of a person's permanent 
abode. 

A student at college, who has a domicil of oriein. and resides at the institution for 
the sole purpose of education, does not thereby ac quire the right to vote in the 
district in which the college is located. 

The election officers are not concluded by the oath of the person offering to vote, 
as to the question of domicil ; they have a right to determine the point from all the 
facts and circumstances of the case. Allentown Election, 28 Legal Intelligencer, 229. 



DIV. VIII.] QUALIFICATION OF VOTERS. 313 

Sec, 67. Whenever, at any general or special election, in voter to make 
any precinct, district, city, village, town or ward, any person ^fengS? en 
offering to vote is not personally known to the judges of elec- 
tion to have the qualifications mentioned in the two preceding 
sections, if his vote is challenged by a legal voter at such 
election, he shall make and subscribe an affidavit in the follow- 
ing form, which shall be retained by the judges of election, and 
returned by them with the poll books : 

** State of Illinois, ) Form of oath. 

County of Cook. J * 

" I, , do solemnly swear [or affirm] that I am a citizen of the 

United States [or, that I was an elector on the first day of April, 
A. D. 1848, or, that I obtained a certificate of naturalization before 
a court of record in this State prior to the first day of January, A.D. 
1S70, as the case may be] ; that I have resided in this State one year, 
in this county ninety days, and in this election district thirty days 
next preceding this election ; that I now reside at [here give the 
particular house or place of residence, and if in a town or city the 
street and number'], in this election district; that I am twenty -one 
years of age, and have not voted at this election : So help me God 
[or, this I do solemnly and sincerely affirm, as the case may be.] 



" Subscribed and sworn to before me this day of , A. D. 

18—." 

Sec. 68. In addition to such an affidavit, the person so m addition to 
challenged shall produce a witness, personally known to the ^siiaifpro-* 
judges of election, and resident in the precinct or district, duce a witness. 
or who shall be proved by some legal voter of such precinct or 
district, known to the judges to be such, who shall take the 
oath following, viz. : 

" I do solemnly swear [or affirm] that I am a resident of this elec- . 

tion precinct [or district], and entitled to vote at this election, and n es?oath! 
that I have been a resident herein for one year last past, and am well 
acquainted with the person whose vote is now offered ; that he is an 
actual and bona fide resident of this election precinct [or district], and 
has resided herein thirty days, and, as I verily believe, in this 
county ninety days and in this State one year next preceding this 
election." 

Sec. 69. The oath, in each case, may be administered by Wh0 may ad _ 
either of the judges of election, or by any officer, resident in Jester such 
the precinct or district, authorized by law to administer oaths. 

Sec. 70. No person who has been legally convicted of any Convict3 
crime, the punishment of which is confinement in the peniten- , 
tiary, shall be permitted to vote at any election, unless he shall 
be restored to the right to vote by pardon. 



314 



ELECTIONS. 



[DIV. VIII. 



Abstract of 
votes to be 
made by 
county clerk. 



CANVASSING VOTES — CERTIFICATE OF ELECTION. 

Sec. 71. Within seven days after the close of the election, 
the county clerks of the respective counties, with the assistance 
of two justices of the peace of the county, shall open the 
returns and make abstracts of the votes in the following man- 
ner, as the case may require: Of votes for governor and 
lieutenant-governor, on one sheet; of votes for other State 
officers, on another sheet ; of votes for presidential electors, on 
another sheet; of votes for representatives to congress, on 
another sheet ; of votes for judges of the supreme court, on 
another sheet; of votes for clerks of the supreme court, on 
another sheet ; of votes for judges of the circuit court, on 
another sheet ; of votes for senators and representatives to the 
genesal assembly, on another sheet ; of votes for members of 
the state board of equalization, on another sheet ; of votes for 
county officers, on another sheet. The foregoing abstracts shall 
be preserved by the county clerk in his office. (1) 



(1) A statement of the number of votes given at an election for the respective 
candidates, required to be made out and filed by the board of county canvassers, is 
prima facie evidence only of the facts stated in it. The county canvass may be cor- 
rected, in a proceeding for that purpose, by the township canvassers, and the latter 
by the ballots themselves. The determination of the board of county canvassers of 
the persons elected is prima facie evidence only of their election. A party may go 
behind the canvass to the ballots to show the number of votes cast for him. The 
duties of the board of canvassers being wholly ministerial. So held in Michigan. 
People v. Vanckve, 1 Mich. R., 362. See also Attorney General ex rel. Carpenter v. Ely, 
4 Wis. R., 420. 

When the vote of an election district is rejected by the county canvassers, because 
no poll -list with the oath of the judges of election accompanied the statement of 
votes made up and returned to the proper officers, the statement being regular in all 
other respects, and delivered by and to the proper officers within the time prescribed 
by law, the testimony of the town clerk, in a proceeding testing the regularity of the 
election, is competent to show by the records kept in his office that the election was 
Tegularly notified and conducted, and that the votes were ascertained and canvassed 
according to law, and also to show the number of votes cast for the different candi- 
dates. The chairman of the town board, whose vote is rejected for the above reasons, 
is a proper witness to show that he acted as one of the judges of election, that the 
judges were duly sworn before the polls were opened, and that the election was con- 
ducted according to the statute. Attorney General ex rel. Carpenter v. Ely, 1 Wis. R., 420. 

Although the person who received the greatest number of xotes for a particular 
office is ineligible 10 that office, such votes are not thereby a nullity, but should be 
counted by the canvassers ; and the person who received a less number of votes in 
such case, although eligible, can not be regarded as elected. Dunning ex rel., etc., v. 
Giles, 1 Chaud. (Wis.) It., 112. Off ex rel., etc., v. Smith, 14 Wis. R., 497. 

The county canvassers have no power not expressly given them by law. They 
must perform their duties precisely as prescribed by the statute, and can not go 
beyond it. And this relates to State and town canvassers. Bre&hford ex rel., etc., v. 
Bruston, 4 W r is. R„ 567. 

Notwithstanding the judges and clerks of elections may not be sworn, and no list 
of electors is kept, as required by law, and otlu r irregularities have occurred, it is 
the duty of the county board to canvass the returns, and their certificate is prima 
facie evidence of the result of the election. Taylor v. Taylor et al., 10 Minn. R., 107. 

The determination, by the canvassers, of the right of the person elected, is not 
conclusive, but merely prima facie, evidence of that person's right to the office, and 
may be overcome by the party who denies such right. Territory v. Pyle, 1 Oregon 
R., 149. 

Where no contest is entered, it is held that the county canvassers can only declare 
the result of the election, as shown by the certificate and returns of the judges of the 
election. They do not pass upon the qualification of voters, nor decide what ballots 
shall be counted. The People ex rel, etc., v. Kilduff, 15 111. R., 492. 

Indeed it is held, in a later case, that the office of canvasser is merely ministerial, 
and, as such, will be controlled by the courts; that these officers are clothed with no 
discretionary powers. They are to open the returns, make abstracts of the votes as 



DIV. VIII.] CANVASSING VOTES. 315 

Sec. 72. The county clerk shall make out a certificate of county clerk 
election to each of the persons having the highest number of l^leUver 
votes, for the several county offices, and deliver such certificate certificates of 

, J . . ' . . election to per- 

to the person entitled to it, on his application. sons entitled to 

thev appear, and the clerk is to deliver a certificate of election to each person having 
the highest number of votes. "Miey are not allowed to reject any returns, or decide 
upon "their validity, if, on their face, they are made in compliance with the law. 
The People ex rel, etc., v. Milliard, 29 111. R., 423. People v. Vancleve, 1 Mich. R., 362. 

A diderent rule obtains in Wisconsin under a statute admitting of a different con- 
struction. Attorney General ezrel. Carpenter v. Ely, 4 Wis. R., 420. 

The justices of the peace, as members of the canvassing board, possess equal power 
with the county clerk. After the board adjourn their power is at an end, and they 
can not be agaiu called together ; and no amendment of their proceedings can be 
made. Opin. Att'y Gen'l Cole (Minn.), vol. 1, p. 145. 

When the board of canvassers have legally canvassed the returns of election, and 
declared the result, their power over the subject is exhausted, and they can not after- 
wards reverse their decision by making a different determination. Headley v. Albany, 
3o N. V. It., 003. 

Where an informality occurs in making election returns, it may no doubt be cor- 
rected bv the canvassers, and should not be allowed to operate to disfranchise the 
voters. 'The People ex rel., etc., v. Billiard, 29 111. K.. 414. 

The duties of the county clerk in receiving and opening election returns, in can- 
vassing aud estimating the votes, and in giving certificates of election, are purely 
ministerial, and no judicial or discretionary powers are conferred upon him or the 
board of canvassers, except, perhaps, that of determining whether the returns are 
genuine, or polled at proper places, and ascertaining from the returns themselves for 
whom the votes were intended. O'FarreU & Bryant v. Colby, 2 Minn. K., 180 

The duty of the clerk in issuing a certificate of election to the person having the 
highest number of votes is purely ministerial, and a mandamus "will be granted to 
compel him to issue such certificate. State v. Lawrence. 3 Kan. R., 95. 

The certificate of election is prima facie title to the office, and can only be set aside 
by a contest in the form prescribed by law. Pretiyman v. Supervisors et al.. 19 111. R„ 
406. Kerr v. Trego, 47 Penn. St. R., 292. 

Where the certificate required of the county clerk in a case for the removal of a 
county seat, omitted to state the number of votes cast at the election, so it might be 
seen whether the proposition had been carried or lost, the returns of the judges and 
clerks of election may be resorted to for the purpose of ascertaining that fact. The 
object of such an election will not be defeated for the want of such a statement in 
the certificate. The People ex rel. v. Wiant, 48 111. R.. 263. 

When no certificate or other formal mode of making known to a person his elec 
tion to a public office is required by law, the result of the election, as ascertained 
aud announced at the close, is conclusive upon the election of officers, and can not 
afterwards be reconsidered or varied. State v. Warren, 1 Houston (Del.) R., 39. 

Iu a proceeding by quo warranto to try the right to an office elective by the people, 
it is competent to go behind the certificate to ascertain the decisive fact of who 
received the most legal votes. (Denmo, C. J., and Wright and Marvin, justices, dis- 
senting.) People v. Pease, 27 N. Y. (13 Smith), R., 45. 

The supreme court has no power to decide upon the right of a party to hold a seat 
in the legislature, but it may compel the proper officers to give the proper creden- 
tials to enable the party to assert his claim before the proper authority. The award 
of a certificate to either candidate under the mandate of the court will not deter- 
mine his election. O'FarreU 6c Bryant v. Colby, 2 Minn. R.. 180. The People ex rel. v. 
Milliard. 2 ( J 111. K..413. 

In an information in the nature of a quo warranto to test the fact of election between 
the parties claiming the same, the court is bound to rectify mistakes and omissions 
of the canvassing boards. Attorney General ex rel. Carpenter v. Ely, 4 Wis. R., 420. 

The legality of an election does not depend upon the fact of the declaration of the 
board of election, or that of the canvassers, if withheld or not made, through illegal 
causes, the office will vest: the authority, rights and powers of officers are derived 
from the election, and not from the returns. The People ex rel., etc., v. Killduff, 15 111. 
R.. 492. 

When the signature of the officers who administered the oaths attached to the 
j irats of a poll book did not appear, and for that reason the poll book was rejected 
by the canvassers, and a certificate given to the opposite party, the rejection of the 
poll book causing a change in the result : Meld, that the writ of mandamus was the 
only remedy of the defeated party to compel the delivery to him of the certificate 
of election, as the prima facie evidence of his election. The People ex rel, etc., v. Mil- 
liard, 29 111. R., 413. 

A person elected to a county office, although he receives no official notice of his 
election, must qualify within the time prescribed by law. The neglect or refusal of 
the county clerk to make out his certificate of election, in compliance with the 
statute, will not impair his title to the office. Spooner ex rel., etc., v. Elderkin, 5 Wis. 
R., 300. 

21 



316 ELECTIOXS. [DIV. VIII. 

Tie vote. Sec. 73. "When two or more persons receive an equal and 

the highest number of votes for an office to be filled by the 
county alone, the county clerk shall issue a notice to such per- 
sons ot such tie vote, and require them to appear at his office, 
on a day named in the notice, within ten days from the day of 
election, and determine by lot which of them is to be declared 
elected. 
Decided by lot. Sec. 74. On the day appointed, the clerk and other canvas- 
sers, or, in case of their absence, the State's attorney or sheriff 
shall attend, and the parties interested shall appear and deter- 
mine by lot which of them is to be declared elected ; and the 
clerk shall issue his certificate of election to the person thus 
declared elected, 
compensation Sec. 75. It shall oe the auty of the county clerk, on the 
ciorks— how receipt of the election returns of any general or special elec- 
paid - tion, to make out his certificate, stating the compensation to 

which the judges and clerks of each election may be entitled 
for their services, and lay the same before the county board at 
its next session ; and said board shall order the compensation 
aforesaid to be paid out of the county treasury. 
Abstract of re- Sec. 76. Immediately after the completion of the abstracts 
tosec'y afstate. of votes, the county clerk shall envelope and seal up a copy 
of the abstracts of votes for governor, lieutenant-governor, 
secretary of state, auditor of public accounts, treasurer, attor- 
ney general, and superintendent of public instruction, and 
indorse upon it in substance, "Abstracts of votes for State 

officers from county," and address it " The speaker of 

the house of representatives." The county clerk shall, at the 
same time, envelope and seal up a copy of each of the abstracts 
of votes for other officers, and indorse the same so as to show 
the contents of the package, and direct the same to the secre- 
tary of state. The several packages shall then be placed in 
one envelope and addressed to the secretary of state. 
How transmit- Sec. 77. Such abstracts shall be transmitted to the secretary 
ted - of state by mail, or, in case it shall be necessary, by special 

messenger. 
state canvass- Sec. 78. The secretary of state, auditor, treasurer and 
how made. attorney general, or any two of them, in the presence of gov- 

OffiVers elected on the proper day. refusing to qualify, become officers de/aco, and 
their acts are valid as to the third' persons, and can only be inquired into directly, 
not collaterally. Co!c< Omnia v. Allison. 23 111. R., 437. See People v. Collins, 7 Johns. 
R., 549; Peop'ev. Runkle. 9 Johns. K . 147. 

Mandamus is the proper remedy against any officer to obtain possession of seals, 
books, papers, muniments, or other pronertv belonging to corporations. Tha People 
ex rel. Brcw4er and .lone* v. KilMuff, 15 111. R!, 502. 

Canvassers are mere ministerial officers ; it is their duty simply to cast up the votes 
and award the certificate to the person having the highest number; they have no 
judicial power, male v. Steen, 44 Mo., 223. 



DIV. VIII.] OFFENSES AND PENALTIES. 317 

ernor, shall proceed, within twenty days after the election, and Governor shall 
sooner if all the returns are received, to canvass the votes given of V eiS2nor 6 
for representatives to Congress, judges of the supreme court, commission, 

^ • fl-nd c£lusg pro* 

clerks of the supreme court, judges of the circuit court, sen- ciamation to be 
ators, representatives to the General Assembly, and members made ' 
of the state board of equalization, respectively ; and the per- 
sons having the highest number of votes for the respective 
offices shall be declared duly elected; but if it appears that 
more than the number of persons to be elected have the high- 
est and an equal number of votes for the same office, the 
secretary of state, in the presence of the other officers and the 
governor, shall decide by lot which of such persons shall be 
elected; and to each person duly elected, the governor shall 
give a certificate of election or commission, as the case may 
require, and shall cause proclamation to be made of the result 
of the canvass. 

OFFENSES AND PENALTIES. 

Sec. 79. No spiritous, malt, vinous or intoxicating liquor no liquor to be 
shall be sold or given away at retail, nor shall any saloon or lway°wuhiu n 
bar-room, or place where such liquor is so sold or given away, one mile of 
be open upon any general or special election day within one 
mile of the place of holding an election. Whoever violates Penalty 
the provisions of this section shall be fined in a sum not less 
than twenty-five nor more than one hundred dollars. It shall 
be the duty of the sheriff, coroner, constables and other officers 
of the county, and magistrates, to see that the provisions of 
this section are enforced. 

Sec. 80. If any person whose vote is challenged, or any False swearing 
witness sworn under the provisions of this act, shall, know- 
ingly, willfully, and corruptly, swear falsely, he shall be 
deemed guilty of perjury, and on conviction thereof, shall be 
punished accordingly. 

Sec. 81. Whoever unlawfully votes more than once at any Repeating— 
election, or offers to vote after having once voted at such elec- peSty V ° tins ~ 
tion ; or knowing that he is not a qualified voter at an election, 
willfully votes at such election, shall, on conviction thereof, be 
fined in a sum not exceeding one thousand dollars, or impris- 
oned in the county jail not exceeding one year, or both, in the 
discretion of the court. 

Sec. 82. Whoever willfully aids or abets any one not legally other irreguia, 
qualified to vote at an election, in voting or attempting to vote nties " 
at such election ; or 

Second — Furnishes an elector with a ticket or ballot inform- torfas to g th e eC " 
ing him that it contains a name different from that which Set. 01 * * 



318 ELECTIONS. [DIV. VIII. 

appears thereon, with intent to induce him to vote contrary to 
his inclination ; or 
Fraudulently Third — Fraudulently or deceitfully changes a ballot of an 
ofire g ctof ballotelector ? with intent t0 deprive such elector of voting for such 

person as he intended ; or 

Obtaining vote Fourth — Endeavors to procure the vote of any elector, or 

threats. 6 * 7 or tne influence of any person over an elector at any election, for 

himself or for or against any person, by means of a promise 

of a favor, or by means of violence or threats of violence, or 

threats of withdrawing custom or dealing in business or trade, 

or enforcing the payment of a debt, or bringing a suit or 

criminal prosecution, or any other threat of injury to be inflicted 

by him or his means ; or 

Attempting to Fifth — By offering a reward or bribe, or by treating to or 

bv fi means o? te S^ v ^ n g spiritous, malt, or other liquor, either directly or indi- 

drink. rectly, influences or attempts to influence any voter in giving 

or withholding his vote at an election ; or 
Bribery, etc Sixth — By bribery or by corrupt or unlawful means, pre- 

vents or attempts to prevent any voter from attending or voting 
at an election ; or 
Penalty. Seventh — Gives or offers to give any valuable thing or bribe 

to any judge or clerk of election, as a consideration for some 
act to be done or omitted to be done, contrary to his official 
duty in relation to such election, shall, on conviction thereof, 
be fined in a sum not exceeding one thousand dollars, or im- 
prisoned in the county jail not exceeding one year, or both, in 
the discretion of the court. 
Penalty for ask- Sec. 83. Whoever receives, requests or demands any bribe 
mgabnbe. or rewar( j forbidden by this act to be given, shall be liable to 
the same penalties as are prescribed by this act for giving such 
bribe or reward. 
Disorder. Sec. 84. Whoever is disorderly at any election shall forfeit 

a sum not exceeding twenty -five dollars. 
Betting on elec- Sec. 85. Whoever bets or wagers any money, property or 
tions. other valuable thing, upon the result of an election which may 

be held under the Constitution or laws of this State, or bets or 
wagers money, property or other valuable thing, upon the 
number of votes which may be given to any person at an elec- 
tion ; or upon who will receive the greatest number of votes at 
an election; or agrees to pay any other person any money, 
property or other valuable thing, in the event that an election 
shall result in one way, or in the event that any person shall 
or shall not be elected, or shall receive a greater number of 
votes than others, upon conviction thereof he shall be fined in 
a sum not exceeding one thousand dollars, or imprisoned in 



DTV 



VIII.] OFFENSES AND PENALTIES. 319 



the county jail not exceeding one year, or both, in the discre- 
tion of the court.(l) 

Sec. 86. If any judge of any election shall permit a person Misconduct of 
to vote whose vote is challenged, without the proof required {SSf. 68 ° f eleC " 
in this act; or,(2) 

ond — Shall knowingly and willfully permit a person to 
testify as a witness contrary to the provisions of this act ; or, 

Third — Shall knowingly permit a person to vote who is 
not qualified according to law ; or, 

Fourth — Shall knowingly receive and count more than one 

(11 The voting of electors of this State, for a president of the United States, is an 
election hold under the laws of this State, and abet or wager as to the result of such 
vote, is a wager on the result of an election under the statute. McClurken v. Dclrich 
et al., 33 111. R., 349. See Gordon v. Casey, 23 111. R., 71 ; Stephens v. Sharpe, 20 111. It., 404. 

The election law, concerning betting on elections, is intended to apply to the elec- 
tion of presidential electors, as well as to that of State officers ; and bets made on such 
elections are void. Gordon v. Casey, 23 111. R., 70. 

A wr.ger on the result of the electoral vote for president of the United States, in 
this State, is void, as against public policy, by the common law. Allen v. Hearne, 1 
Tenn. HL, 57 ; Bunn v. Riker, 4 Johns. R., 420 : Bush v. Keeler, 5 Wend. L., 250 : Morgan 
r. Pcttit, 3 Scam. R., 531 ; 16 Serg. and Rawle R., 147 ; Gordon v. Casey, 23 I'll. R., 71 ; 
Stephens v. Sharpe, 23 111. R., 404 ; McClurken v. Dclrich et al., 33 111 R., 350. 

A bet or wager on the result of an election in this Slate, whether made before or 
after the election, would be illegal, as against good policy. Morgan v. Petlit, 3 Scam. 
R., 531. 

A wager as to the result of a presidential election, in another State, made after the 
vote has been cast, is not against public policy. Smith v. Smith, 21 111 R., 244. 

The law prohibiting betting on elections applies only to elections held in this State, 
and does not extend to those made concerning elections to be held in other States; 
therefore, a bet or wager between two citizens of this State, upon the majority which 
General Harrison would obtain at the presidential election in the State of Kentucky, is 
not illegal ; and an action can be maintianed by the winner to recover the amount of 
the wager. Morgan r. Peitil, 3 Scam. R., 531. 

Where B and L purchased a piece of cloth at a store on credit, and at the time of 
the purchase a memorandum was made as follows: "If Mr. Douglass is elected to 
Congress, Brown is to pay for the cloth ; if Mr. Stewart is elected, James Lurton has 
it to pay ;" Held, that the contract was in severalty. Held, also, that the contract for 
the sale" of the cloth was valid ; and was not tainted by the bet of B and L. Lurton 
v. Gilliam etal., 1 Scam. R., 579. 

At common law, all wagers are recoverable, but such as are prohibited by statute ; 
such as are against sound policy ; and such as tend to a breach of the peace, to 
immoralitv, or indecencv, or injuriously affect the rights of third persons. Morgan 
v. Pettit, 3 Scam. R., 530. 

A stakeholder, unless some other mode has been provided, is the proper person to 
decide who has won a wager. Smith v. Smith, 21 111. R., 244. The court concurs with 
the case of Elhron v. Kingsman, 4 Eng. Com. Law R., 626. 

A note for money, payable if " Abraham Lincoln receives the electoral vote of the 
State of Illinois," is a bet on election, and void on its face. Gordon v. Casey, 23 111. 
R.. 71 ; Guymanv. Burlingame, 36111. R., 201. 

It seems a court of equity will not decree the specific performance of a contract, 
the consideration of which is a wager upon an election held uuder the law of this 
State. McClurken v. Detrich et al., 33 111. R., 349. 

(2) It is only when the judge of election allows the exercise of the elective fran- 
chise by one whose right he suspects, or whose vote is challenged, without tendering 
the required oath, that the judge violates the law. Spragins v. Houghton, 2 Scam. 
R.. 377. 

An election officer is not criminally liable for a mere mistake of judgment, but 
only for a willful disregard of duty ; when indicted for rejecting a vote, the presump- 
tions are in his favor. Commonwealth v. Lee, 1 Brewster (Penn.), 273. 

An action on the case will not lie against the inspectors of election for refusing 
the vote of a qualified elector, unless on proof of malice, express or implied. Jenkins 
v. Waldron, 11 Johnson, N. Y., 114. 

Election ofiicers are generally punishable by indictment, for knowinglv receiving 
the vote of one who is not a duly qualified elector. Stale v. Roll, 7 West, L. J., 138. 
State v. McDonald, 4 Harrington, 555. 

Fraud, when imputed to the acts of inspectors of election, implies an illegal and 
mongful act, purposely committed. People v. Cook, 8 New York, 67. 



320 ELECTIONS. [DIV. VIII. 

vote from the same person at the same election for the same 
office, except as allowed by law ; or, 

Fifth — Shall refuse to receive the vote of a qualified elector 
at such election, who will make the affidavit and proof required 
by this act ; or, 

Sixth — Shall be guilty of any fraud, corruption, partiality 
or manifest misbehavior ; or, 

Seventh — Shall open or unfold any ballot when the same 
is presented to be deposited in the ballot-box ; or, 
How punished Eighth — Shall willfully neglect to perform any of the 
dutiSf lect ° f duties required of him by this act, shall, on conviction thereof, 
> be fined in a sum not exceeding one thousand dollars, or 

imprisoned in the county jail not exceeding one year, or both, 
in the discretion of the court, 
comparison of S EC - 87. If any judge or clerk of election shall willfully or 
iud l0 eana clerk corru P tr y ascertain, by comparison of the poll book with the 
forbidden. ballot, or shall allow any other person to ascertain by such 
comparison or otherwise, or shall willfully publish or reveal 
how any elector voted at an election, he shall, on conviction 
thereof, be fined in any sum not exceeding one thousand dol- 
lars, or imprisoned in the county jail not exceeding one year, 
or both, in the discretion of the court. 
Publishing the &EC. 88. If any person shall willfully or corruptly ascertain 
m gnner m or publish, or reveal how any elector voted at an election, he 
son voted— how shall, on conviction thereof, be fined in any sum not exceeding 
pums e . one thousand dollars, or imprisoned in the county jail not 

exceeding one year, or both, in the discretion of the court. 
Neglect of clerk Sec. 89. If any clerk of an election shall willfully neglect 
to perform du- to perform any duty required of him as clerk of election, or 
shall be guilty of fraud, corruption or misbehavior as such 
Penalty. clerk, he shall, on conviction, be fined in a sum not exceeding 

five hundred dollars, or imprisoned in the county jail not 
exceeding six months, or both, in the discretion of the court. 
Failure to de- ^ EC * ^0. If any judge, clerk or messenger, after having 
liver poll book, been deputed by the judges of election to carry the poll books, 
tally list and votes of such election to the place where, by law, 
they are required to be canvassed, willfully or negligently 
fails to deliver such poll books, tally lists or ballots within the 
time prescribed by law, with the seal unbroken, he shall, upon 
conviction, be fined in a sum not exceeding five hundred dol- 
lars, or imprisoned in the county jail not exceeding six months, 
or both, in the discretion of the court. 
County clerk— Sec. ^1- If the county clerk willfully neglects or refuses to 
neglect of duty, perform any duty required of him by this act, he shall, upon 
conviction, be fined in a sum not exceeding five hundred dol- 



DIV. Vm.] CONTESTING ELECTIONS. 321 

lars, and shall be liable to the person injured by reason of Penalty, 
such neglect or refusal, in an amount not exceeding five hun- 
dred dollars, to be recovered in an action on the case. 

Sec. 92. If any county, clerk or justice of the peace shall Fraud in can- 

, ., ., pi .■ • i i_ • • • vassing vote. 

be guilty ot any fraud, corruption or misbehavior in canvassing 
the votes or making any abstract of votes, or issuing any cer- 
tificate of election, he shall, on conviction, be fined in any Penal 
sum not exceeding five hundred dollars, or imprisoned in the 
county jail not exceeding one year, or both, in the discretion 
of the court. 

Sec. 93. Whoever shall willfully and wrongfully take or carrying away 
carry away from the place where it has been deposited for safepoffiook." 1 * 
keeping, or deface, mutilate or change any poll book, ballot or 
tally list, or any name or figure therein, shall, on conviction, 
be fined in a sum not exceeding one thousand dollars, or Penalty, 
imprisoned in the county jail not exceeding one year, or both, 
in the discretion of the court. 

CONTESTING ELECTIONS. 

See. 94. The legislature in joint meeting shall hear and contesting the 
determine cases of contested elections of governor and lieuten- omceS 1 ° f state 
ant - governor, secretary of state, auditor of public accounts, 
treasurer, superintendent of public instruction, and attorney 
general. The meeting of the two houses, to decide upon such 
elections, shall be held in the hall of the house of representa- 
tives, and the speaker of the house shall preside. 

Sec. 95. The senate and house of representatives shall of senators and 
severally hear and determine contests of the election of their Jf^ seuta " 
respective members. 

Sec. 96. The supreme court shall hear and determine con- of judges of su- 
tests of the election of judges of the supreme court, clerks of eTrcuftandsu- 
the supreme court, judges of the circuit court, judges of theg^ r C o U ^. of 
superior court of Cook county, members of the State board of 
equalization ; but no judge of the supreme court shall sit upon 
the hearing of any case in which he is a party. 

Sec. 97. The circuit courts of the respective counties shall of counties, 
hear and determine contests of the election of the judges of county seats, 
the county court of their counties, and in regard to the removal 
of county seats, and in regard to any other subject which may 
by law be submitted to the vote of the people of the county. 

Sec. 98. The county court shall hear and determine contests of county, 
of election of all other county, township and precinct officers, pre'Sn^officere. 
and all other officers for the contesting of whose election no 
provision is made. 



322 ELECTIONS. [dIV. VUI. 

Manner of con- Sec. 99. When any elector shall desire to contest the elec- 

ofSate officers! ^ on °^ governor, lieutenant-governor, secretary of state, 

auditor of public accounts, treasurer, superintendent of public 

instruction, or attorney general, he shall, within ten days after 

the result of the election shall have been determined, present 

a petition to the General Assembly, setting forth the points on 

which he will contest such election, and praying for leave to 

produce his proof. 

Gen. Assembly Sec. 100. The General Assembly shall appoint a joint com- 

miu&! int C ° m " m i ttee to ta ^ e tne testimony on the part of the petitioner, and 

the person whose place is contested, 
powers of com- Sec. 101. The committee so appointed shall have power to 
mittee. sen( j f or witnesses, and compel the attendance of witnesses and 

the production of papers, issue commissions under the hand of 
its chairman, to any officer authorized to take depositions in 
other cases, to take the deposition of witnesses upon the points 
set forth in the petition, at such time and place as the com- 
mission shall direct. 
Notice to be Sec. 102. Reasonable notice shall be given by the party in 

glTen - whose favor the deposition is to be taken, to the opposite party, 

of the time and place of taking the same. 
Testimony, Sec. 103. No testimony shall be taken except upon the 

points set forth in the petition. 

committee to Sec. 104. The committee shall report the facts to the house, 

report ' and a day shall be fixed by a joint resolution for the meeting 

of the two houses to decide upon the same, in which decision 

the yeas and nays shall be taken and entered upon the journal. 

Any qualified g ECp 105. The election of any member declared dulv elected 

voter may con- . J • m \ : r* 

test election of to a seat in the senate or house of representatives oi the (jen- 
Gen? Assembly, eral A ssenibly, may be contested by any qualified voter of the 
county or district to be represented by such senator or repre- 
sentative. 
Notice of con- Sec. 106. The contestant shall, within thirty days after the 
test result of the election shall have been determined, serve on the 

person whose election he will contest, a notice of his intention 
to contest such election, expressing the points on which the 
same will be contested ; and shall, also, on or before the next 
session of the General Assembly, deliver a copy of such notice 
to the secretary of state. In case the person whose election is 
contested is absent, or cannot be found, service may be had by 
leaving a copy of such notice at his usual place of residence.(l) 

(1) The object of requiring the " points ' of contest to be stated, is for the purpose 
of informing the adverse partv of the grounds of contest, so that he may prepare to 
meet them. Each party is therefore required, when he becomes the actor, to give 
notice of the specific grounds on which he intends to contest the election, or the cor- 
rectness of the returns or canvass. Taylor v. Taylor et al„ 10 Minn. R., 107. 



PIV. VIII.] CONTESTING ELECTIONS. 323 

107. Whenever a notice shall have been given of inten- Testimony, be- 
tion to contest an election, as provided in the preceding section, Sken! h ° m 
either party may proceed to take testimony of any witness 
before any judge, justice of the peace, clerk of a court, master 
in chancery, or notary public, on giving to the adverse party 
or his attorney ten days' notice of the time and place of taking 
the same, and one day in addition thereto (Sunday inclusive) 
for every fifty miles travel from the place of residence of such 
party to the place where such deposition is to be taken. If the 
party entitled to notice resides in the county where the deposi- 
tion is to be taken, five days' notice shall be sufficient. 

. 108. The officer before whom depositions are taken papers and wit- 
shall have power to compel the production of papers, and the nesses - 
attendance of witnesses ; and the same proceedings may be had 
to compel the attendance of witnesses as are provided in the 
cases of taking depositions to be used in courts of law and 
equity. 

S] C. 109. A copy of the notice to .take depositions, witli § r ^ t j^f t igJ a ' ke 
proof of the service thereof, with the deposition, shall be sealed 
up and transmitted by mail, or otherwise, to the secretary of 
State, with an indorsement thereon, showing the names of the 
contesting parties, the office contested, and the nature of the 
papers. 

A court of chancery has no jurisdiction to inquire into the validity of elections. 
Nor will such jurisdiction be conferred by the ruere omission of the particular case 
from the operation of the general law on the subject of contested elections. Moore 
v. Hoisington et al., 31 111. R., 243. 

The person who holds a certificate from the authorities appointed by law to can- 
vass the votes, declaring him elected to an office, and who has complied with the 
requirements of law in relation to the office, is entitled to the present possession 
thereof, notwithstanding the prior incumbent contests his election, denying its 
legality. Such contest is not an appeal, but is an original proceeding; under our 
statutes, going behind the poll books, and purging the election. The People ex rel. 
CumminrjA v. Head, 25 111. R., 325. 

It is competent for the court and jury to go behind the certificate of the canvassers, 
for the purpose of determining who was legally elected to a contested office. Car- 
penter v. Eh/. 4 Wis. R., 420. 

On the trial of a contested election, the members returned as elected, though sworn 
in, are not competent to vote on the question of the validity of their own election. 
Commonwealth v. McCloskey, 2 Rawle (Penn.), 369. 

A petition complaining of an undue election and return, must set forth the facts 
with precision ; and they must be sufficient, if sustained by proof, to render it the 
duty of the court, either to vacate the election, or to declare that another person 
than the one returned was duly elected. 

Unless the petition be thus specific, and set forth facts that, if true, would have 
changed the result, it will be quashed, on motion. 

Mere irregularities, on the part of the election officers, will not vitiate the poll. 
Skerrctt* Cote. 2 Parsons (Penn.), 509; see also 8 New York. G7. 

The question whether a voter was or was not duly qualified, is not concluded by 
the decision of the inspectors; it is open to examination, in subsequent proceedings, 
upou any competent evidence. People v. Pease, 27 New York. 45. 

The title to an office confers upon the person elected a right to the fees and emolu- 
ments thereof, from the commencement of his legal term. 

An action for money had and received will lie by the officer de jure against one 
who has intruded into the office, by color of a certificate of election, to recover the 
fees received during the time of such intrusion. 

If the incumbent received his commission bona fide, he will be allowed, in such 
action, his reasonable expenses in executing the duties of the office, otherwise, if his 
intrusion were without pretense of legal right. Mayfield v. Moore, Supreme Court of 
Illinois, reported in 3 Legal News, 114. 



324 ELECTIONS. [DIV. VIII. 



EUtC. 



contest to be 
givea. 



Dutyofsec'yof Sec. 110. The secretary of state shall deliver the copy of 
the notice deposited with him by the contestant, and the deposi- 
tions, unopened, to the presiding officer of the branch of the 
General Assembly to which the contest relates, on or before 
the second day of its session next after the receipt of the same; 
and the presiding officer shall immediately give notice to his 
house that such papers are in his possession. 
Rights of Geni Sec. 111. Nothing herein contained shall be construed to 
abrfdgeS not abridge the right of either branch of the General Assembly to 
grant commissions to take depositions, or to send for and 
examine any witnesses it may desire to hear on such trial, 
who may con- Sec. H^. The election of any person declared elected to any 
tevt in certain office other than governor, lieutenant-governor, secretary of 
state, auditor of public accounts, treasurer, superintendent of 
public instruction, attorney general, senator or representative, 
may be contested by any elector of the State, judicial division, 
district, county, town, or precinct in and for which the person 
is declared elected. 
Notice ana Sec. 113. The person desiring to contest such election shall, 

points of such within thirty days after the person whose election is contested 
is declared elected, file with the clerk of the proper court a 
statement, in writing, setting forth the points on which he will 
contest the election, which statement shall be verified by affida- 
vit in the same manner as bills in chancery may be verified. 
Summons. Sec. 114. Upon the filing of such statement, summons shall 

issue against the person whose office is contested, and he may 
be served with process, or notified to appear in the same man- 
ner as is provided in cases in chancery. 
Evidence. Sec. 115. Evidence may be taken in the same manner, and 

upon like notice, as in cases in chancery, 
case, how tried, Sec. 116. The case shall be tried in like manner as cases 

in chancery. 

contest of eiec- Sec. 117. Any five electors of the county may contest an 

quesSons. othere l ect i on upon any other subject which may by law be submitted 

to a vote of the people of the county, upon filing in the circuit 

court, within thirty days after the result of the election shall 

have been determined, a written statement in like form as in 

other cases of contested elections in the circuit court. The 

county shall be made defendant, and process shall be served as 

in suits against the county ; and like proceedings shall be had 

as in other cases of contested elections before such court. 

who may de- Sec. 118. In case the county board shall fail or refuse prop- 

feud " erly to defend such contest, the court shall allow any one or 

more electors of the county to appear and defend, in which case 



DIV. VIII.] RESIGNATIONS AND VACANCIES. 325 

the electors so defending shall be liable for the costs in case the 
judgment of the court shall be in favor of the contestant. 

Sec. 119. The judgment of the court, in cases of contested Judgment of 
election, shall confirm or annul the election according to the court ' 
right of the matter ; or, in case the contest is in relation to 
the election of some person to an office, shall declare as elected 
the person who shall appear to be duly elected. 

Sec. 120. If it appears that two or more persons have, or Election to be 
would have had if the legal ballots cast or intended to be cast f v e h C e n e -J shaif 
for them had been counted, the highest and an equal number ap P ^haV wo 
of votes for the same office, the persons receiving such votes received an 
shall decide by lot, in such manner as the court shall direct, J? votes Um er 
which of them shall be declared duly elected ; and the judg- 
ment shall be entered accordingly. 

Sec. 121. A certified copy of the judgment of the courts certified copy 
shall have the same effect as to the result of the election as if ° JU gmeut - 
it had been so declared by the canvassers. 

Sec. 122. When the person whose election is contested is when election 
found to have received the highest number of legal votes, but cKdvSd. 
the election is declared null by reason of legal disqualification 
on his part, or for other causes, the person receiving the next 
highest number of votes shall not be declared elected, but the 
election shall be declared void. 

Sec. 123. In. all cases of contested elections in the circuit Appeal to su- 
courts or county courts, appeals may be taken to the supreme pieme cour 
in the same manner, and upon like conditions as is provided 
by law for taking appeals in cases in chancery from the circuit 
courts. 

RESIGNATIONS AND VACANCIES. 

Sec. 124. Resignations of elective offices shall be made to Resignations, 
the officer, court or county board authorized by law to fill a to whom made, 
vacancy in such office by appointment, or to order an election 
to fill such vacancy. 

Sec. 125. Every elective office shall become vacant on the when avacan- 
happening of either of the following events, before the expira- cy w111 occur- 
tion of the term of such office : 

First — The death of the incumbent. 

Second — His resignation. 

Third — His becoming insane. 

Fourth — His ceasing to be an inhabitant of the State; or, 
if the office is local, his ceasing to be an inhabitant of the 
district, county, town or precinct for which he w r as elected. 



326 ELECTIONS. [DIV. VIII. 

Fifth — His conviction of an infamous crime, or of any 
offense involving a violation of official oath.(l) 
Sixth — His removal from office. 

Seventh — His refusal or neglect to take his oath of office, 
or to give or renew his official bond, or to deposit or file such 
oath or bond within the time prescribed by law. 

Eighth — The decision of a competent tribunal declaring 
his election void. 
Vacancies, how Sec. 126. Whenever it is alleged that a vacancy in any 
office exists, the officer, court, or county board whose duty it 
is to fill the vacancy by appointment, or to order an election 
to fill such vacancy, shall have power to determine whether or 
not the facts occasioning such vacancy exist, 
in office of gov. Sec. 127. In case of vacancies in the offices of governor 
andheut.gov. and lieutenant -governor, the officer performing the duties of 
the office of governor, or if there is no such officer, the secre- 
tary of state, shall issue a proclamation appointing a day for 
a special election to fill such vacancies ; and shall issue a writ 
of election to the county clerks of the several counties in the 
State, and shall also, when necessary, call a special session of 
the General Assembly to canvass the votes cast at such election ; 
but if such vacancies shall occur not more than ninety days 
before a general election for members of the legislature, the 
vacancies shall be filled at such general election, in which case 
no special session of the General Assembly to canvass the 
votes shall be deemed necessary, 
other state Sec. 128. When a vacancy shall occur in the office of sec- 

officers, retary of state, auditor of public accounts, treasurer, attorney- 

general, superintendent of public instruction, or member of 
the State board of equalization, the governor shall fill the same 
by appointment, and the appointee shall hold his office during 
the remainder of the term, and until his successor is elected 
and qualified, 
vacancy in Sec. 129. When a vacancy shall occur in the office of sena- 

o?re e p?eilSS- or tor or representative in the General Assembly, it shall be the 
tive - duty of the county clerk of the county in which the member 

whose office is vacant resided, to notify the governor of such 
vacany, whereupon the governor shall issue a writ of election 
to the county clerk or clerks of the county or counties in 
which the vacancy is to be filled, fixing a day upon which an 
election shall be held to fill such vacancy; but unless the 

(li The trial and conviction of a sheriff, of the offense of bribing a voter previously 
to his election to the office, does not constitutionally disqualify him from exercising 
the duties thereof: it is not a "conviction of misbehavior in office or of any 
infamous crime," within the meaning of the Constitution. Commonwealth v. Shaver, 
3 Watts & Sergeant, Penn., 338. 



DIY. VIII.] TO WHAT ELECTIONS TIIIS ACT MAY APPLY. 327 

General Assembly shall be in session at the time the vacancy 
occurs, or there shall be a session between the time at which 
the vacancy occurs and the next succeeding general election, 
no special election shall be ordered to fill such vacancy. 

Sec. 130. When any vacancy shall occur in the office of Representative 
representative in Congress from this State, the governor shall n 
issue a writ of election to the county clerks of the several 
counties in the district where the vacancy exists, appointing a 
day to hold a special election to fill such vacancy. 

Sec. 131. When a vacancy shall occur in the office of judge in office of 
of the supreme court, judge of the circuit court, judge of the J C oufts.° 
superior court of Cook county, or judge of the county court, 
the clerk of the court in which the vacancy exists, shall notify 
the governor of such vacancy. If such vacancy shall occur 
within one year before the expiration of the term of the office 
made vacant, the governor shall fill such vacancy by appoint- 
ment ; but if the unexpired term exceeds one year, the gover- 
nor shall issue a writ of election, as in other cases of vacancies', 
to be filled by election. 

Sec. 132. When a vacancy shall occur in the office of clerk clerks of 
of the supreme court, clerk of the circuit court, clerk of the 
superior court of Cook county, or clerk of the county court, 
•within one year before the expiration of the term of an office 
made vacant, the vacancy shall be filled by appointment by 
the court, or the judge or judges of the court to which the 
office appertains ; but if the unexpired term exceeds one year, 
the governor shall issue a writ of election, as in other cases of 
vacancies, to be filled by election. 

Sec. 133. When a vacancy shall occur in the office of county officers, 
county commissioner, State's attorney, sheriff", coroner, county 
clerk, recorder of deeds, county treasurer, county surveyor, 
justice of the peace, constable, or other county or precinct 
officer not otherwise provided for by law, within one year 
before the expiration of the term of such vacant office, the 
vacancy shall be filled by appointment, by the county board 
of the county in which the vacancy exists ; but if such unex- 
pired term exceeds one year, the county clerk, or in case of a 
vacancy in his office, the chairman of the county board shall 
issue an order appointing a day for an election to fill such 
vacancy, and cause notice thereof to be given as in other cases 
of election. 

TO WHAT ELECTIONS THIS ACT MAY APPLY. 

Sec. 134. The provisions of this act shall apply, as far as This act applies 
practicable, to all elections in the State, whether general, t0 a11 elections ' 



328 ELECTIONS. [DIV. VIII. 

special, local or municipal, except so far as they are modified 
or contravened by other legal enactments. 

REPEAL. 

Acts repealed. ^EC. ^5. The following acts are hereby repealed : Chapter 
thirty -seven, of the Revised Statutes of 1845, entitled "Elec- 
tions ;" an act entitled " An act to amend the seventh section 
of the thirty - seventh chapter of the revised laws of 1845, in 
relation to elections," approved February 23, 1847 ; an act 
entitled " An act to provide for the mode of voting by ballot, 
and for the manner of returning, canvassing and certifying 
votes," approved February 12, 1849 ; an act entitled "An act 
to provide for the filling of vacancies in certain county offices,"' 
approved November 6, 1849; an act entitled "An act to 
prevent illegal voting at elections," approved February 21, 
1861 ; an act entitled "An act to provide for ascertaining the 
qualification of voters, and to prevent fraudulent voting," 
approved February 22, 1861 ; and all other acts inconsistent 
with the provisions of this act : Provided, that this section 
shall not be construed so as to affect any rights or causes of 
action that may have accrued before this act shall take effect. 

CONSTITUTIONAL PROVISION. 

On the subject of qualification of voters, the Constitution, 
Art. VII, declares: 

" Sec. 1. Every person having resided in this State one year, 
in the county ninety days, and in the election district thirty 
days next preceding any election therein, who was an elector 
in this State on the first day of April, in the year of our Lord 
one thousand eight hundred and forty-eight, or obtained a cer- 
tificate of naturalization before any court of record in this State 
prior to the first day of January, in the year of our Lord one 
thousand eight hundred and seventy, or who shall be a male 
citizen of the United States, above the age of twenty-one years, 
shall be entitled to vote at such election." 



DIV. VIII.] REGISTRY OF VOTERS. 329 

REGISTRY OF VOTERS. Approved 

Feb. 15, 1865. 

Section 1. The persons authorized by law, or appointed Y 

pursuant to any town or city ordinance, to act as judges or Bo ardof 
inspectors of election in any town, city or ward, or other elec- "gktry- 
tion district or precinct in this State, shall constitute a " board 
of registry " for their respective towns, cities, wards, districts 
or precincts, and shall meet on Tuesday, three weeks preceding Time of 
any State election, at nine o'clock A. M., and proceed to make ™akeilt. 
a list, as hereinafter prescribed, of all persons qualified and 
entitled to vote at the ensuing election in the election district 
of which they are judges or inspectors ; which list, when com- 
pleted, shall constitute and be known as the " register " of 
electors of said election district. (1) 

Sec. 2. Said registers shall each contain a list of the per- Formof list> ^ 
sons so qualified and entitled to vote in said election district, 
alphabetically arranged, according to their respective surnames, 
so as to show, in one column, the name at full length, and in 1874# 
another column, in cities, the residence, by the number of the 
dwelling, if there be a number, and the name of the street or 
other location of the dwelling-place of each person. It shall 
be the duty of said board to enter in said lists the names of all who shall be 
persons residing in their election district, whose name appears entered on Ust 
on the poll list kept in said district at the last preceding elec- 
tion : in cities the number of the dwelling and name of the 
street or other location, if the same shall be known to or can 
be ascertained by such board. And for this purpose said Bo »rd take poll 
board are authorized to take from the office in which they are Usts - 
filed the poll lists made and filed by the judges or inspectors 
of such district at the election held next prior to the making 
of such register. In making said list, the board shall enter 
thereon, in addition to the names on the poll list, the names Additional 
of all other persons who are well known to them to be electors names - 
in said district ; and the names of all persons on the poll list 
who have died or removed from the district shall be omitted 
from the register. The said* board shall complete, as far as complete list 
practicable, the said register on the day of their meeting, afore- meeting/ 
said, and shall make two copies thereof, and certify the regis- 

(1) Persons whose names are put upon the registry list, but who do not appear and 
vote at an election, are presumed to have left the election district, and therefore no 
longer voters therein. The registry list of voters is no better evidence of the num- 
ber of legal voters in a district or county than the poll list. The vote cast is prima 
facie evidence of not only the result of the election, but also of the number of legal 
voters in the county. The registry lists do not rebut or overcome this presumption. 
People ex rel. v. Garner, 47 111. R., 247. 

The act of 1865, providing for the registry of electors, and to prevent frauds in elec- 
tions, does not apply to elections held for the purpose of deciding upon the removal 
of a county seat. Borm v. Smith et al., 47 111. R., 482. 



330 



ELECTIONS. [DIV. VIII. 



ter and each of the copies to be a true list of the voters in 
their district, so far as the same are known. Within two days 
thereafter, the said original list, together with the list taken 
List: to be filed, from the office, as aforesaid, shall be filed by said board in the 
office of the town clerk of the town in which said election dis- 
trict may be ; but in counties not adopting township organiza- 
tion, said list shall be filed with the judges or inspectors of 
election of the proper district, or if such election district is in 
a city, then it shall be filed in the office of the city clerk of 
one copy said city ; and one copy of said list shall be kept by one of 
said judges or inspectors, and carefully preserved by him for 
their use on the day or days hereinafter mentioned, for the 
copy posted, revision and correction of the same. One copy of said list 
shall, immediately after its completion, be posted in some con- 
spicuous place where the last preceding election in said district 
was held, and be accessible to any elector who may desire to 
examine the same or make copies thereof. Any person who 
Penalty for shall take down, tear down or deface any list so posted shall 
defecing. -foe deemed guilty of misdemeanor, and shall be punished by a 
fine of fifty dollars, or by imprisonment in the county jail for 
the term of sixty days, or by both fine and imprisonment, 
in case of new Sec. 3. In case a new election district shall be formed by the 
ceedin^by organization of a new town, or by the division of any town or 
judgeS to r ward, or the incorporation of a city or town, the judges or 
ra ' . inspectors of the election in the new district thus formed, may 
make their registry of electors on the day prescribed by this 
act, in such manner as a majority of them may direct, and for 
that purpose may make a list, or cause to be made a certified 
copy of the poll list or lists of the districts in which such new 
district is situated, or they may dispense with such list or lists, 
and proceed to make a register of electors from the best means 
List to embrace at their command. Said lists shall only embrace the names 
names known. f sucn persons as are known to them to be electors in their 
district, and shall be posted up and copies thereof made, as 
prescribed in the preceding section, and shall be corrected in 
the same manner that other lists are corrected. 
second Sec. 4. The said board shall again meet on Tuesday of the 

meeting of the we ek preceding the said elections, in their respective election 
districts, at the place designated for holding the polls of the 
election, for the purpose of revising, correcting and completing 
1874. said lists, and for this purpose, in cities, they shall meet at 

eight o'clock in the morning, and remain in session until nine 
o'clock, P. M. ; and in other districts they shall meet at nine 
o'clock in the morning, and remain in session until four 



o'clock, P. M. 



DIV. VIII.] REGISTF.Y OF VOTERS. 331 

Sec. 5. The proceedings of said board shall be open, and Proceedings of 
all persons residing and entitled to vote in said district, shall open. 
be entitled to be heard by said board in relation to correc- 
tions or additions to said register. One of the lists so kept by 
said judges or inspectors, as aforesaid, shall be used by them, 
on the day or days of making corrections or additions, for the 
purpose of completing the registry for such district. 

Sec. 6. It shall be the duty of said board, at their meeting Duty of board 
for revising and correcting said lists, to erase therefrom the °f n^res? 68 
name of any person inserted therein who shall be proved by dents - 
the oath of two legal voters of said district, to the satisfaction 
of said board, to be non-resident of said district, or otherwise 
not entitled to vote in said district at the election then next to 
be held. Anv elector residing in said district, and entitled to Elector may 

L , . J , jP . , , , 7 , , . have his name 

vote therein, may appear before said board and require his entered. 

name to be recorded on said alphabetical list. Any persou so 

requiring his name to be so entered on said lists, shall make Duty of elector 

the same statement as to the street and number thereof, and n ame n to g be 18 

where he resides, required by the provisions of this act of per- entered - 

sons offering their votes at elections ; and shall be subject to 

the same penalties for refusing to give such information, or for Penalty for 

falsely giving the same, and shall also be subject to challenge, information. 

either by the judges or inspectors, or either of them, or by 

any other elector whose name appears on said alphabetical list ; 

and the same oaths may be administered by the judges or 

inspectors as now provided in case of persons offering to vote 

at an election, and in case no challenge is made of any person 

requiring his name to be entered on said alphabetical list, or in 

case of challenge, if such person shall make oath that would Oath to be 

entitle him to vote in case of challenge at an election, then by judges or 

the name of any such person shall be added to the alphabeti- ms P ectors - 

cal poll list of the last preceding year. 

Sec. 7. After said lists shall have been fully completed, the Make two 
said board shall, within three days thereafter, cause two copies copies of lisL 
of the same to be made, each of which shall be certified by 
them to be a correct list of the voters of their district ; one of 
which shall be filed in the office of the town clerk of towns, 
and in the office of city clerks of cities ; and one of which 1874, 
copies shall be delivered to said judges or inspectors. It shall 
be the duty of the said judges or inspectors so receiving such 
list carefully to preserve the said list for their use on election 
day, and to designate two of their number, at the opening of 
the polls, to check the name of every voter voting in such dis- 
trict whose name is on the register. No vote shall be received No vote re- 
at any State election in this State, if the name of the per- n o t V on regSeS 

Am 



332 ELECTIONS. [DIY. VIII. 

when name is sons offering to vote be not on the said register made on the 
affidavitf gls r ' Tuesday preceding the election, unless the person offering to 
vote shall furnish to the judges of the election his affidavit, in 
writing, stating therein that he is an inhabitant of said district 
and entitled to vote therein at such election, and prove by the 
oath of a householder and registered voter of the district in 
which he offers to vote, that he knows such person to be an 
inhabitant of the district, and if in any city, giving the resi- 
oath, by whom dence of such person within said district. The oath may be 
administered administered by one of the judges or inspectors of the election, 
at the poll where the vote shall be offered, or by any other 
person authorized to administer oaths, but no person shall be 
authorized to receive compensation for administering the oath. 
Oath to be filed. Said oath shall be preserved and filed in the office of the town 
or city clerk, or in case there be no clerk, then said oath shall 
be filed with and preserved by the judges or inspectors of the 
proper district. Any person may be challenged, and the same 
oaths shall be put as now are or hereafter may be prescribed 
by law.(l) 
Additional Sec. 8. The clerks at each poll, in addition to the duties now 

eiection C in r ° prescribed by law, shall enter on the poll list kept by them, in 
keeping poll co l umns prepared for that purpose, opposite the name of each 
person voting, the same statement or minute as hereinbefore 
required of the board in making the registry ; but such entry 
is not to be made by them if the registry contains correctly the 
name and residence cf such voter ; and in all cases said clerk 
shall enter in a column opposite the name of each person not 
registered the words "not registered." In cities every elector, 
street and at ^e ^ me °^ °ff er ^ n g n ^ s vote > sna ll truly state the street in 
number to be which he resides, and if the house, lodging, or tenement in 

given 

which he resides is numbered, the number thereof. And the 
clerks of the polls, in case the name of such elector is not reg- 
cierk to enter istered, shall truly enter in the appropriate column of the poll 
street and num- list, opposite the name of the elector, the street in which the 
elector resides, the number, in case the house, lodging, or ten- 
ement is numbered ; and if the same is not numbered, then the 
clerk shall enter " not numbered " in the column of the poll 
list for entering the number. In case of refusal to make the 

(1) Under this act, a person who has not been registered as a voter must not only 
show by his own affidavit that he is an inhabitant of the district in which he offered 
his vote, but he must, in addition, establish such fact by the affidavit of a " house- 
holder and registered voter " of such district. In such case the fact that the person 
so offering his vote was well known to the judges of the election, who knew that he 
resided in the district, and had previously been in the habit of voting therein, does 
not dispense with the proof required by the statute. The requirements of this act, 
relative to the proof to be made by persons whose names have not been registered, 
are reasonable and within the scope of legislative power, and are not calculated to 
abridge the elective franchise. Byler et al. v. Asher, 47 111. R., 102. 



I»IV. VIII.] REGISTRY OF VOTERS. 333 

statement as aforesaid, the vote of such an elector shall not be Refusal to 
received. Any person who shall willfully make any false ment. 
statement in relation thereto, shall be deemed guilty of misde- 
meanor, and shall, upon conviction, be punished with a fine of j^J^^ 
fifty dollars, or by imprisonment in the county jail in the punishment 
county for a period of ten days, or by both such fine and im- 
prisonment. 

Sec. 9. After the canvass of the votes, one of said poll lists p u list and 
and said register so kept and checked, as aforesaid, shall be j^jSher ami 
attached together, and shall, on the following day, be filed in filed, 
the town or city clerk's office (as the case may be) in which 
said district may be, or in case there be no such clerk, then, 
such poll lists and register shall be filed with and preserved by 
the judges or inspectors, to be used by the board of registry in 
making the list of voters at the next State election ; the other 1374. 
of said poll lists and registers, so kept and checked, shall be 
returned to the office of the county clerk in the county in 
which said district may be, at the same time the returns of the 
election are made. 

Sec. 10. Repealed by act 1874. 

Sec. 11. The registers shall at all times be open to public Registers open 
inspection, at the office of the authorities in which they shall to P ubhc - 
be deposited, without charge. 

Sec. 12. That -the members of the board of registration shall compensation 
each receive two dollars per day for each day actually employed ° boar 
in the making and completion of the registry, not exceeding 
two days, to be paid to them at the time and in the manner in 1874. 
which they are paid their other fees. 

Sec. 13. The said board shall have and exercise the same Board may pre- 
power in preserving order at their meetings, under this act, as serve order - 
are given to judges and inspectors of elections for preserving 
order on election days ; and vacancies in said board shall be • 

filled in the same manner that vacancies are now filled at elec- 
tions.d) 

Sec. 14. Any person who shall cause his name to be regis- Punishment for 
tered in more than one election district, or who shall cause his n a ame y to C ber^ 
name to be registered knowing that he is not a qualified voter istered - 
in the district where said registry is made, or who shall falsely 
personate any registered voter, and any person causing, aiding, 
or abetting any person, in any manner, in either of said acts, 
shall be punished for each and every offense by imprisonment 
in the state prison for not less than one year. All intentional Perjury, 
false swearing before said board of registration shall be deemed 

(1) See ante, Sec. 44, p. 306. 



334 ELECTIONS. [DIV. VIII. 

?aw^ a hSw° f will f u * an( * corr upt perjury, and, on conviction, punished as 
punished. such. If any member or officer of said board shall willfully 
violate any of the provisions of this act, or be guilty of any 
fraud in the execution of the duties of his office, he shall be 
punished for each and every offense by imprisonment in the 
state prison for not less than one year.(l) 
Acts of 1861 Sec. 15. An act entitled "An Act to prevent illegal voting 

at elections," approved February 21, 1861, and an act entitled 
"An Act to provide for ascertaining the qualification of voters 
and to prevent fraudulent voting," approved February 22, 
1861, be and the same are hereby amended by striking out 
the words "sixty days" in said acts, wherever the same occur, 
and inserting in the place thereof the words " thirty days" 
Act of Feb. 22, Sec. 16. Section five of an act entitled "An Act to provide 
'for ascertaining the qualifications of voters, and to prevent 
fraudulent voting," approved February 22, 1861, shall be con- 
strued so as to require the number to be indorsed by the 
judges or inspectors of election on every ballot cast, and in 
elections, general or special, in pursuance of any law of this 
^p recess or State, after the opening of the polls, no adjournment shall be 
eiections nentat had, nor shall any recess be taken until all the votes cast at 
such election shall have been counted and the result publicly 
announced, provided that judges and inspectors of election 
Compensation shall each be allowed the sum of two dollars for each and 
of judges. every day's service by them performed under the requirements 

of this act. 
secretary of Sec. 17. The Secretary of State shall cause this law to be 
iaw e to°beprint- Pointed in pamphlet form, with suitable forms and instructions 
form^and *" or cari 7 m g ft into effect, together with the general election 
distributed. law of the State, and a sufficient number of copies thereof sent 
to each county clerk in every county in this State to supply 
, each of the officers named in this act with a copy. And it 

shall be the duty of each of said clerks to immediately transmit 
a copy of the same to each of the judges or inspectors of elec- 
tion in his county. 
secretary of Sec. 18. The necessary blanks for making the registers 
blanks! prepare required by law shall be prepared by the Secretary of State 

(1) Members of the board of registry are not liable to indictment for refusing to 
insert the name of a voter upon the list, if they act honestly and in the exercise of 
their best judgment. State v. Smith, 18 N. H. Hep., 91. 

And an information against the board of registry for refusing to put a voter's name 
on the list, should allege that they knew his right to vote. State v. Daniels, 44 N. H. 
Rep., 383; Lombards. Oliver, 7 Allen (Mass.) R.,155. 

An action will not lie against the judge of an election for refusing the vote of a 
person who was not registered as a voter, and who failed to comply with the require- 
ments of section 7 of the registry act, relative to the proof to be made in such cases. 
Nor will the fact that such refusal was placed on grounds not tenable change their 
liability. Byler et al. v. Asher, 47 111., R.. 101. 



DIV. VIII.] REGISTRY OF VOTERS. 335 

and transmitted to the persons entitled to receive them, in the 
same manner that blank returns of elections are now trans- 
mitted. 

Sec. 19. Nothing contained in this act shall be construed Not to affect 
in any manner to affect the provisions of any act that has been SLfe s a ession. 
or may be passed at the present session of the General Assem- 
bly, to enable the qualified electors of this State, absent there- 
from, in the military service of the United States, in the army 
or navy thereof, to vote. 



DIV. IX.] COUNTY AFFAIHS. 



337 



DIVISION IX. 
COUNTY AFFAIRS. 

1. Counties. 

2. Removal of County Seats. 

3. County Clerks. 

4. County Treasurers. 

5. State's Attorneys. 

6. Weights and Measures. 

7. Animals Running at Large. 

1. COUNTIES. Approved 

AND 

In Force 
BOUNDARIES AND JURISDICTION. Lvboh 31, 18?4. 

Section 1. The boundaries of the several counties of this Boundaries of 
State shall remain as now established until the same shall be cou 
changed according to law. 

Sec. 2. Each county bounded by either the Mississippi, jurisdiction on 
Ohio or Wabash river, shall have jurisdiction over such river nvers ' 
to the extent it is so bounded, which jurisdiction may be exer- 
cised concurrently with the contiguous States bounded by such 
river. 

Sec. 3. Each of the counties bordering on Lake Michigan on Lake 
shall have jurisdiction over said lake eastwardly, to the east lc ' lgan * 
line of the State. 

alteration of county lines. 

Sec 4. When a majority of the legal voters, residing upon Petition for 
any territory, not less than half of one congressional township, county line, 
shall petition the county board of their own county, and also 
of the county to which they desire such territory to be trans- 
ferred, for leave to have such territory transferred to such 
county, it shall be the duty of the several county boards so 
petitioned to order an election for such purpose in their respec- Election, 
tive counties, to be held within three months from the time of 
receiving such petition ; which election shall be governed by the 
laws relating to general elections, and returns of said election 
shall be made to the secretary of state as for county officers. 



338 



COUNTY AFFAIRS — COUNTIES. 



[DIV. IX. 



Notices of 
election. 



Form of ballots. 

Majority vote. 
Change made. 

Proviso. 



Town and pre- 
cinct officers. 



Number of 
square miles 
in a county. 



Change not to 
release debts. 



"When debts 
released. 



Sec. 5. Notices of such election shall contain a description 
of the territory proposed to be transferred, the names of the 
counties from and to which such transfer is intended to be 
made, and shall be posted as required for general elections. 

Sec. 6. The ballots used in the said elections may be in the 
following form, to wit: "For transferring territory," and 
"Against transferring territory," when, if a majority of the 
voters voting upon said question in the county from which said 
territory is proposed to be taken, and a majority of the voters 
of the county to which the same is proposed to be transferred, 
shall be " For transferring territory," then the said territory 
shall be transferred to and become a part of the county to 
which it is proposed to transfer the same, on and after the first 
day of March succeeding such elections, and shall be subject 
to all the laws, rules and regulations thereof: Provided., that 
all assessments and collection of taxes, and judicial or other 
official proceedings commenced prior to said first day of March, 
shall be continued, prosecuted and completed, in the same 
manner as if no such transfer had been made : And 'provided 
further, that all township or precinct officers within said 
transferred territory, shall continue to hold their respective 
offices within the county to which they may be transferred, 
until their respective terms of office expire. 

Sec. 7. No county shall be reduced, under the provisions 
of this act, to less contents than four hundred square miles ; 
nor shall any county line be made to pass within less than ten 
miles of the county seat of the county from which territory 
is so transferred. 

Sec. 8. No territory transferred under the provisions of this 
act shall be released from the payment of its proportion of the 
debts of the county from which such territory is transferred ; 
and such proportionate indebtedness from such transferred 
territory shall be collected by the county to which such ter- 
ritory is transferred, at an equal or greater rate than is levied 
and collected in the county from which such territory was 
transferred — such rate to be ascertained by the certificate of 
the county clerk of said last named county, and when so col- 
lected, to be paid over to the county entitled thereto. 

Sec. 9. When the county to which such territory is trans- 
ferred shall also be indebted, the county board of such county 
shall release such transferred territory from the payment of 
such indebtedness, to an amount equal to that which said ter- 
ritory is required to pay to the county from which it was 
transferred. 

Sec. 10. When a majority of the legal voters of any ter- 



DIV. IX.] NEW COUNTIES. 339 

ritory, loss than half of one congressional township, shall peti- Less than haif- 
tion the county boards as provided in section four of this act, election 
the said county boards may, in their discretion, order elections ordered - 
to be held as herein provided ; and in any case where elections 
have been held under this act, and the result has been adverse 
to the petitioners, it shall be in the discretion of the said 
boards to order another election, on a petition to transfer the 
same territory, within three years from the time of holding 
&uch former election. 

NEW COUNTIES. 

Sec. 11. Whenever it is desired to form a new county out Petition for 
of one or more of the then existing counties, and a petition new °° un y * 
praying for the erection of such new county, stating and 
describing the territory proposed to be taken for such new 
county, together with the name of such proposed new T county, 
signed by a majority of the legal voters residing in the ter- 
ritory to be stricken from such county or counties, shall be 
presented to the county board of each county to be affected by To county 
such division, and it appearing that such new county can be oar " 
constitutionally formed, it shall be the duty of such county 
board or county boards to make an order providing for the 
submission of the question of the erection of such new county submit to vote 
to a vote of the people of the counties to be affected, at the eieSn? 1 
next succeeding general election for the election of members 
of the General Assembly, of which the notice shall be given, 
the votes canvassed, and the returns made as in case of elec 
tion of county officers or members of the General Assembly ; 
and the form of the ballot to bemused in the determination of 
such question shall be as follows: " For new county," and Form of ballot. 
"Against new county." 

Sec. 12. If it shall appear that a majority of all^the votes Majority vote, 
cast at such election in each of the counties interested, is in 
favor of the erection of such new county, the county clerk of 
each of said counties shall certify the same to the secretary of cierk certify to 
state, stating in such certificate the name, territorial contents state. tary ° 
and boundaries of such new county ; w r hereupon the secretary 
of state shall notify the governor of the result of such elec- 
tion, whose duty it shall be to order an election of county Election for 
officers for such new county, at such time as he shall designate, cotm y ° cers " 
and he may, when necessary, fix the place of holding election, 
notice of which shall be given in such manner as the governor 
shall direct. At such election the qualified voters of said new 
county shall elect all county officers for said county, except as 



340 



COUNTY AFFAIRS COUNTIES. 



[DIV. IX. 



Justices and 
tOAvn officers 
hold over in 
new county. 



hereinafter excepted, who shall be commissioned and qualified 
in the same manner as such officers are in other counties in 
this State, and who shall continue in office until the next gen- 
eral election for such officers, and until their successors are 
elected and qualified, and who shall have all the jurisdiction 
and perform all the duties which are or may be conferred upon 
such officers in other counties of this State. 

Sec. 13. All the justices of the peace, constables and other 
township or precinct officers, who were previously elected and 
qualified in the county or counties from which such new county 
has been formed, whose term of office shall not have expired 
at the time of said election, and whose residence shall be 
embraced within the limits of said new county, shall continue 
in office until their terms of office shall expire, and until their 
successors shall be elected and qualified. 

Sec. 14. The votes for the county officers of said new county 
shall be canvassed, and returns made by the county clerk or 
county clerks of the county or counties from which such new 
county was formed, as provided by law in other cases. 

Sec. 15. The oath of office may be administered to the sev- 
eral county officers of such new county by any person author- 
ized by law to administer oaths ; and as soon as said county 
officers are duly qualified, the county shall be regarded as 
legally organized, and for judicial purposes shall be deemed 
and taken as belonging to the circuit in which said new county, 
or the greater part thereof, is embraced, and terms of the cir- 
cuit court shall be held at such place in said new county as the 
county board thereof shall designate, until the county seat 
thereof shall be permanently located. The times of holding 
such court shall be appointed by the judge thereof, until other- 
wise provided by law. 

Sec. 16. The courts of any county or counties from which 
such new county is erected may, by proper order, transfer any 
suit or other legal proceeding affecting real estate in such new 
county, to the proper court of such new county, or may trans- 
fer any suit and all papers and records pertaining thereto to 
such new county, when all the parties thereto are residents of 
such new county ; but all judgments and other liens in the 
county or counties from which such new county was erected, 
shall have the same effect as if no new county had been erected. 

Sec. 17. All the property, both real and personal, and all 
debts, liabilities and choses in action of every kind, belonging 
to the county or counties from which such new county was 
formed, shall be divided by the several county boards of the 
counties interested, between the county or counties from which 



Canvass of 
votes. 



Oaths of office, 
by whom 
administered. 



Circuit court. 



Suits trans- 
ferred to new 
county. 



Property and 
debts divided 
by county 
board. 



DIV. IX.] NEW COUNTIES. 341 

such new county is formed, and the new county, in proportion 
to the assessed value of property for the last preceding year, 
which has been taken from such original county or counties 
and carried to such new county ; and if such boards can- 
not agree upon such division, they may refer the matter of 
difference to arbitrators, or the rights to such property may be 
settled by a bill in chancery filed by either party for that pur- 
pose. In case the said property cannot be divided or removed, 
the county receiving the same shall pay to the other a pro- 
portionate value for the same. 

Sec. 18. The county board of such new county shall, at any county board 
session of said board, by an order to be entered of record, commissioner, 
appoint some competent person a commissioner, for the purpose 
hereinafter expressed, who shall take an oath of office before 
some person authorized by law to administer oaths. Said 
board shall, at the same time, provide a sufficient number of Blank books for 
blank books, and deliver them to said commissioner, who shall commissioner, 
receipt for the same to the county clerk of said county. 

Sec. 19. As soon as said books shall be delivered to said Record of 
commissioner, he shall record in each a copy of the order of P 
his appointment and of his oath of office, and shall thereupon 
proceed to transcribe into such books, from the records of the Transcribe 
county or several counties from which the new county is formed, records. 11 
all such deeds* mortgages and title papers of every description, 
with the certificates of acknowledgment thereto, and the date 
of the filing of the same for record, of lands lying in said new 
county which previously were recorded in the counties from 
which such new county was formed ; and there shall be allowed 
said commissioner such sum as his services aforesaid are reason- Compensation 

i i • i /» i *»i • -i °* commis- 

ably worth, to be paid out ot the county treasury ot the saidsioner. 
new county. 

Sec. 20. Said commissioner shall note, at the end of each Note at end of 
paper he shall transcribe, the book and page from which thepaje. b00kand 
same was transcribed, and shall make a correct double index 
of said records ; and on the completion of his duties, said 
commissioner shall return said books to the recorder of deeds Return book 
of said new county, with his certificate attached thereto, show- pieted? " 1 " 
ing that he has complied with the law ; whereupon they shall 
be taken and considered, to all intents and purposes, as books 
of records of deeds, mortgages and title papers for said new 
county. And copies of said record, certified by the officer copies mado 
having the custody of the same, shall be evidence in all courts evi ence * 
and places, in the same manner that copies of records are evi- 
dence in other cases, and with like effect. 



342 



COUNTY AFFAIRS — COUNTIES. 



[DIV. IX. 



Fix location of 
county seat by 
ballot. 



Majority vote. 



If not a 
majority, 
another elec- 
tion ordered. 



Sec. 21. For the purpose of fixing the permanent location 
of the county seat of such new county, the voters of said 
county shall, at said election for county officers, vote for some 
place, to be designated upon their ballots, for a county seat ; 
upon which ballot shall be written or printed, or partly written 
and partly printed, "For County Seat," after which words 
shall be written or printed the name of the place intended for 
the county seat. The place receiving a majority of. all the 
legal votes cast upon the question shall be the county seat of 
said county. But if no place shall receive a majority of all 
the votes cast upon the question, then it shall be the duty of 
the county board of said county to call another election within 
sixty days thereafter, at the several places of holding elections 
in said county, at which election the voters of said county shall 
proceed to vote as before, but^ shall choose from the two places 
having the greatest number of legal votes at the former elec- 
tion ; and the place having the majority of all the Jegal votes 
cast at the second election shall be the permanent county seat 
of said county. 



OF THE POWERS AND DUTIES OF COUNTIES AND COUNTY 
BOARDS. * 



Each county a Sec. 22. Each county which has heretofore been, or may 

body politic. nerea ft er k e established in this State, according to the laws 
thereof, shall be a body politic and corporate, by the name and 

style. style of " The county of ," and by that name may sue 

and be sued, plead and may be impleaded, defend and be 
defended against in any conrt of record having jurisdiction of 
the subject-matter, either in law or equity, or other place where 
justice shall be administered. 

county board.] i Sec. 23. The powers of the county, as a body corporate or 
politic, shall be exercised by a county board, to wit : In counties 
under township organization, except the county of Cook, by 
the board of supervisors, which shall be composed of the town 
and such other supervisors as are or may be elected pursuant 
to law ; except in the county of Cook, by a board of county 
commissioners, pursuant to Section 7, Article X., of the Con- 
stitution ; in counties not under township organization, by the 
board of county commissioners. 

Sec. 24. Each county shall have power : 
First — To purchase and hold the real and personal estate 
necessary for the uses of the county, and to purchase and hold, 
for the benefit of the county, real estate sold by virtue of 
judicial proceedings in which the county is plaintiff. 

^Amended, see post p. 374. 



Who compose 
board. 



Power. 

Purchase 
property. 



DIV. IX.] TOWERS OP COUNTIES. 343 

S5 d — To sell and convey or lease any real or personal convey 
estate owned by the county. proper 5. 

Third — To make all contracts and do all other acts in rela-Makecontraots. 
tion to the property and concerns of the county, necessary to 
the exercise of its corporate powers. 

Fourth — To take all necessary measures and institute pro- Cruelty to 
ceedings to enforce all laws for the prevention of cruelty to anuna ^ 
animals. 

Sec. 25. The county boards of the several counties shall Power of board, 
have power : 

First — To take and have the care and custody of all the custody of 
real and personal estate owned by the county. property . 

Second — To manage the county funds and county business, county funds. 
except as otherwise specifically provided. 

Third — To examine and settle all accounts against the Settle accounts, 
county, and all accounts concerning the receipts and expendi- 
tures of the county. 

Fourth — To cause to be erected or otherwise provided a Provide work- 
suitable workhouse, in which persons convicted of offenses houses - 
punishable by imprisonment in the county jail may be confined 
and employed, and to make rules and regulations for the man- 
agement thereof. They may contract for the use of a city 
workhouse when the same can satisfactorily be done. 

Fifth — To cause to be erected or otherwise provided suita- Buildings for 
ble buildings for, and maintain, a county insane asylum, and msane - 
provide for the management of the same. 

Sixth — To cause to be annually levied and collected, taxes Levy taxes. 
for county purposes, including all purposes for which money 
may be raised by the county by taxation, not exceeding 
seventy-five cents on the one hundred dollars' valuation, and in Limitation of 
addition thereto an annual tax not exceeding one hundred taxes. n 
cents on the one hundred dollars, for the purpose of paying 
the interest and principal of indebtedness which existed at the 
time of the adoption of the constitution. 

Seventh — To authorize the vacation of any town plat when vacate town 
the same is not within any incorporated town, village or city, plats - 
on the petition of two-thirds of the owners thereof. 

Eighth — To change the name of any town plat on the peti- change name 
tion of a majority of the legal voters residing therein, when oftownplat ' 
the inhabitants thereof have not become a body corporate. 

Sec 26. It shall be the duty of the county board of each Duty of board, 
county : 

First — To erect or otherwise provide when necessary, and Erect court 
the finances of the county will justify it, and keep in repair, a house and jaiL 
suitable court house, jail, and other necessary county buildings, 



344 



COUNTY AFFAIRS — COUNTIES. 



[DIV IX. 



Provide rooms and to provide proper rooms'and offices for the accommodation 
officers. of the several courts of record of the county, and for the county 

board, county clerk, county treasurer, recorder, sheriff,' and 

the clerks of said 



In counties not+"U OVA f nT . 
undertownship lu 
organization. 



Books and 
stationery. 



Publish 
statement of 
proceedings. 



courts, and to provide suitable furniture 
But in counties not under township organization, 
no appropriations shall be made for the erection of public build- 
ings, without first submitting the proposition to a vote of the 
people of the county, and said vote shall be submitted in the 
some manner and under the same restrictions as provided for 
in like cases in section twenty-seven of this act, and the votes 
therefor shall be "For taxation," specifying the object, and 
those against shall be "Against taxation," specifying the 
object. 
Fire-proof safes Second — To provide and keep in repair, where the finances 
of the county permit, suitable fire-proof safes or offices for the 
county clerk, county treasurer, recorder, sheriff and clerks of 
said courts. 

Third — To provide suitable books and stationery for the 
use of the county board, county clerk, county treasurer, 
recorder, sheriff, coroner, and the clerks of said courts. 

Fourth — To cause to be published at the close of each 
annual, regular or special meeting of the board, a brief state- 
ment of the proceedings thereof in one or more newspapers 
published in trie county, in which shall be set forth the name 
of every individual who shall have had any account audited 
and allowed by said board, and the amount of said claim as 
allowed, and the amount claimed, and also their proceedings 
upon the equalization of the assessment roll : Provided, that 
no publication in a newspaper shall be required unless the same 
can be done without unreasonable expense. 

Fifth — To make out at its meeting in September, annually, 
a full and accurate statement of the receipts and expenditures 
of the preceding year, which statement shall contain a full and 
correct description of each item, from whom and on what 
account received, to whom paid, and on what account expend- 
ed, together with an accurate statement of the finances of the 
county at the end of the fiscal year, including all debts and 
liabilities of every description, and the assets and other means 
to discharge the same; and within thirty days thereafter to 
b ause tec? 6 to cause * ne same to be posted up at the court house door, and at 
two other places in the county, and published for one week in 
some newspaper therein, if there is one, and the same can be 
done without unreasonable expense. 

Sec. 27. Whenever the county board shall deem it neces- 
sary to assess taxes, the aggregate of which shall exceed the 



Proviso. 



Statement of 
receipts and 
expenditures. 



DTV. IX.] DUTIES OF COUNTY BOARDS. 345 

rate of seventy-five cents per one hundred dollars' valuation of when tax 
the property of the county, except when such excess is to be cents! county 
used for the payment of indebtedness existing at the adoption pubmit B ques- 
of the constitution, the county board may, by an order entered gon to vote of 
of record, set forth substantially the amount of such excess 
required, and the purpose for which the same will be required, 
and if for the payment of interest or principal, or both, upon 
bonds, shall in a general way designate the bonds and specify 
the number of years such excess will be required to be levied, 
and provide for the submission of the question of assessing the 
additional rate required to a vote of the people of the county at 
the next election for county officers after the adoption of the 
resolution ; and it shall be the duty of the county clerk in his Notice, 
election notice to give notice of such submission. The votes vote. 
therefor shall be, " For additional tax," and those against shall 
be, " Against additional tax." The votes shall be canvassed canvass, 
and returned the same as those for county officers, and if a 
majority of the votes cast upon the question are "For addi- Majority, 
tional tax," then the county board shall have power to cause 
such additional tax to be levied and collected in accordance Additional tax 
with the terms of such resolution, and the money so collected levied - 
shall be kept as a separate fund and disbursed only for the separate fund, 
purposes for which the same was raised : Provided, any sur- Proviso, 
plus that may remain after the payment of all demands against surplus, 
said fund may be used for other purposes. 

Sec. 28. If it shall be deemed necessary to submit to a votei ssuingDOnd# 
of the .people at the same election the question of issuing bonds Submit t0 vote - 
and the raising of such additional tax, the same may be 
included in one proceeding, and in that case the votes in favor 
of issuing such bonds and levying such additional tax shall be, 
"For bonds and additional tax," and those against shall be, 
"Against bonds and additional tax." 

Sec. 29. All deeds, grants and conveyances heretofore Deeds and 
made, and duly acknowledged and recorded as other deeds, legSSJ 063 
conveying any lands, tenements, or hereditaments to any 
county or to the inhabitants of any county, or to the county 
commissioners, county commissioners' court, county court, 
board of supervisors, or to the governor, or any other officer 
or person or persons, by whatever form of conveyance, for the 
use and benefit of any county, shall be good and valid to all 
intents and purposes, to vest in such county, in fee simple or 
otherwise, all such right, title, interest and estate as the 
grantor or grantors in any such deed or conveyance had at the 
time of the execution thereof, in the land conveyed, and 
intended thereby to be conveyed. 



346 COUNTY AFFAIRS — COUNTIES. [DIV. IX. 

Notes and writ- Sec. 30. All notes, bonds, bills, contracts, covenants, agree- 
g 1Z ' ments or writings, made or to be made, whereby any person is 
or shall be bound to the people of the State of Illinois, or to any 
county or the inhabitants thereof, or to the county commis- 
sioners, county commissioners' court, or county court, or the 
hoard of supervisors, or to the governor, or any other officer 
or person, in whatever form, for the payment of money, or any 
debt or duty, or the performance of any matter or thing to or 
for the use of any county, shall be as valid and effectual, to all 
intents and purposes, to vest in said county all the rights, 
interest and actions which would be vested in any individual, 
suits on notes if any such contract had been made directly to him. Suits 
writings. ma y k e cojjjujg^g^ sue( j an( j prosecuted thereon in the name 
of said county, as is provided herein, or in the name of the 
officer or person to whom they are made, to the use of the 
county, as fully and effectually, to all intents and purposes, as 
any person may or can upon like notes, bills, bonds, contracts, 
agreements or writings made to him. 
Actions against Sec. 31. All actions, local or transitory, against any coun- 
cuSrte y ofthe ty> ma y De commenced and prosecuted to final judgment in the 
county. circuit court, or any court of general jurisdiction in the county 

against which the action is brought. Any action, local or 
transitory, in which any county shall be plaintiff, may be 
commenced and prosecuted to final judgment in the county in 
which the defendant in such action resides, 
inhabitants Sec. 32. In all actions brought by or against any county, 

and witnesses. tne inhabitants of the county so suing or being sued may be 
jurors or witnesses, if otherwise competent or qualified accord- 
ing to law. 
county board Sec. 33. It shall be the duty of the county boards of each 
of the counties of this State to take and order suitable and 
-proper measures for the prosecuting and defending of all suits 
to be brought by or against their respective counties, and all 
suits which it may become necessary to prosecute or defend to 
enforce the collection of all taxes charged on the State assess- 
ment. 
Execution not Sec. 34. Execution shall not in any case issue against the 
coun-.y^ 81 lands or other property of a county, but when judgment is 
rendered against a county, the county board shall direct an 
order to be drawn on the county treasurer for the amount of 
the judgment and costs, which order shall be paid as other 
county debts, 
claim verified Sec. 35. Before any claim against a county is audited and 
allowed, the claimant or his agent shall verify the same by his 
affidavit, stating that the several *items therein mentioned are 



DTV. IX.] DUTIES OF COUNTY BOARDS. 347 



incut m 
affidavit. 



iust and true, and the services charged therein, or articles fur- state 
nished, as the ease may be, Were rendered or turnishcd as 
therein charged, and that the amount claimed is due and unpaid 
after allowing all just credits ; and when the claim of any 
person against a county is disallowed in whole or in part by 
the county board, and the nature of the claim is not such that 
the allowance is discretionary with the county board, such per- 
son may appeal from the decision of such board to the circuit claimant may 
court of the same county, upon filing bond w T ith the clerk of circuit court, 
such court within twenty days after the rendition of the 
decision, with such security as shall be approved by such clerk, 
in the penal sum of two hundred and fifty dollars, payable to Bond. 
the people of the State of Illinois for the use of such county, 
conditioned that he will prosecute the appeal with eifect, and 
pay all costs that may be adjudged against him. 

Sec. 36. Upon such bond being filed with the said clerk, he Summons 
shall issue a summons against the county board in like form, as agamst county. 
near as may be, as in cases of appeals from justices of the 
peace, which shall be served as other summons against a county. 

Sec. 37. The county clerk shall, within ten days after the county clerk 
service of such summons, make out a certified copy of the cert ? f y papers 

,.. iin l -t i •T t0 circult court. 

decision appealed irom, and transmit the same, together with 
all the papers in his possession appertaining to such decision, 
to the clerk of the circuit court, who shall file the same in his 
office, and docket the case as in other cases of appeals. 

Sec. 38. The time of fixing the compensation of county Time of fixing 
officers whose compensation is to be fixed by the county board, o? n county tion 
shall be at the meeting of such board next before the regular ofiieers. 
election of the officers whose compensation is to be fixed ; but 
in case where such compensation -is not fixed, the board shall 
proceed, at the next regular or special meeting held thereafter, 
to fix such compensation. 

Sec. '39. Whenever a tax is levied for the payment of a -when tax kept 
specific debt, the amount of such tax collected shall be kept as se P arate - 
a separate fund in the county treasury, and expended only in 
the liquidation of such indebtedness : Provided, that any sur- Proviso 
plus remaining in the treasury after full payment of such s urplus 
indebtedness, shall be transferred to the common fund of the 
county. 

Sec. 40. When the county board of any county shall deem i ssue of comity 
it necessary to issue county bonds to enable them to perform bonds - 
any of the duties imposed upon them by law, they may, by 
an order entered of record, specifying the amount of bonds 
required and the object for which they are to be issued, submit submitted to 
to the legal voters of their county, at any general election, the vote - 
23 



348 



COUNTY AFFAIRS COUNTIES. 



[div. IX. 



Limitation of question of issuing; such county bonds. The amount of the 

amount of , i , . , , °,, -i • i • i« i 

bonds. bonds so issued snail not exceed, including the then existing 

indebtedness of the county, five per centum on the value of 
such taxable property of such county, as ascertained by the 
assessment for the State and county tax for the preceding 

Form of ballot. y ear# Said vote shall be by ballot, on which shall be written 
or printed " For county bonds," or "Against county bonds';" 
and if a majority of the voters at such election on that ques- 
tion shall be "For county bonds," such county board shall be 
authorized to issue such bonds of not less than one hundred 
dollars nor more than one thousand dollars each, payable 
respectively in not less than one year nor more than twenty 
years, with interest payable annually at the rate of not more 
than ten per cent, per annum. 



Terms of 
bonds. 



Neglect of duty Sec. 41. If any member of the county board of any county 

board. ' in this State shall willfully neglect to perform any of the duties 

which are or shall be required of him by law, as a member of 

penalty. the county board, he shall, for every such offense, forfeit the 

sum of two hundred dollars, to be recovered in an action of 

debt before any justice of the peace of the county. 



provisions specially applicable to the board of county 

commissioners in counties not under township 

organization. 



Sec. 



o£c. 42. Each member of the board of county commission- 
comSSioned ers sna ^ ^ e commissioned by the governor, and shall, before 
by the entering upon the duties of his office, take and subscribe the 

following oath, wnich shall be filed in the office of the county 

clerk : 



Oath of office. 



Regular 
sessions of 
county com- 
missioners. 



Elect 
chairman. 



I do solemnly swear [or affirm, as the case may be~\, that I will sup- 
port the Constitution of the United States and the Constitution of the 
{State of Illinois, and that I will faithfully discharge the duties of the 

office of county commissioner of county, according to the best 

of my ability. . 

Sec. 43. The board of county commissioners shall hold regu- 
lar sessions for the transaction of the business of the county, 
on the first Mondays of December, March, June and Septem- 
ber, the second Monday of July of each year, and at such 
other times as may be provided by law, and may hold special 
sessions on the call of the chairman or any two members of 
said board, whenever the business of the county requires it. 

Sec. 44. At the session of said commissioners in December 
of each year, they shall elect one of their number chairman 
for the ensuing year, who shall preside at their sessions and 



P1V. IX.] BOARD OF SUPERVISORS. 340 

perform such duties as are or may be prescribed by law or by 
the order of said hoard. 

Sec. 45. A majority of the members of said board shall Majority a 

•' J . -i i_ c i quorum. 

constitute a quorum to do business, and, in the absence ot the 
chairman, a chairman pro tern, may be appointed. 

SEC. 40. The board 'of county commissioners shall be the Successors of 
successor of the county court in relation to all matters con- 
cerning county affairs, and where, in any county not under 
township organization, the county court is authorized to do any 
act or make any contract on behalf of the county, such author- 
ity shall be vested in said board. 

Sec. 47. Such board shall have general supervision of all ^pemsion 
highways, roads and bridges in the county, including State 
roads. 

Sec. 48. The chairman or any member of the board of Administer 
county commissioners may administer oaths to persons, con- 
cerning any matter submitted to the board, or connected with 
their powers or duties. 

Sec. 48J. All acts heretofore done by the boards of county Acts legalized, 
commissioners, which might have been done by county courts in 
counties in which the said courts have not continued to do the 
business of said counties, are hereby legalized. 

PROVISIONS SPECIALLY APPLICABLE TO THE BOARD OF SUPER- 
VISORS IN COUNTIES UNDER TOWNSHIP ORGANIZATION. 

Sec. 49. The annual meetings of the boards of supervisors Regular meet- 
shall be holden on the second Tuesday of September in eachg U | s er ) visors rdof 
and every year, at the county seat ; and if the court house be 
convenient, shall be held therein. A regular meeting of the 
board shall be held on the second Monday of July of each and 
every year, at the county seat, and at such other times as may 
be prescribed by law. 

Sec. 50. Special meetings of the board of supervisors shall special 
be held only when requested by at least one-third of the mem- mee ings ' 
bers of the board, which request shall be in writing, addressed 
to the clerk of the board, and specifying the time and place of 
such meeting, upon reception of which the clerk shall imme- 
diately transmit notice, in writing, of such meeting, to each of 
the members of the board. The clerk shall also cause notice Notice, 
of such meeting to be published in some newspaper printed in 
the county, if any there be. 

Sec. 51. The board of supervisors, at their first meeting inchoo?ea 
every year, shall organize by choosing one of their number as chairman - 
chairman, who shall preside at all meetings of the board dur- 



350 COUNTY AFFAIRS COUNTIES. [D1V. IX. 

Temporary mg the year. In case of his absence at any meeting, the 
members present shall choose one of their number as tempo- 
rary chairman. 
Certificates of Sec. 52. The supervisors shall severally lay before the board, 
at the first meeting after the election, their several certificates 
of election, which shall be examined by the board, and if found 
regular, shall be filed in the office of the county clerk. 
Majority a Sec. 53. A majority of the supervisors of any county shall 

quorum. constitute a quorum for the transaction of business; and all 

questions which shall arise at meetings shall be determined by 
the votes of the majority of the supervisors present, except in 
such cases as is otherwise provided. 
Opendoors. Sec. 54. The board of supervisors shall sit with open doors, 

and all persons may attend their meetings, 
chairman Sec. 55. Every chairman of said board shall have power to 

oaths mster administer an oath to any person, concerning any matter sub- 
mitted to the board or connected with their powers and duties. 
Appropriate Sec. 56. Said board shall have power to appropriate funds 

aud d bridges ads to a ^ * n tne construction of roads and bridges in any part of 
the county, whenever a majority of the whole board of the 
county may deem it proper and expedient, 
change Sec. 57. Said board shall also have power to change the 

of towns! es boundaries of towns, and to create new towns in their respec- 
tive counties, in manner provided by law ; to designate and 
give names thereto, and to fix the place of holding the first 
town meeting therein.* 
proceedings to Sec. 58. Whenever the board of supervisors shall create a 
townor change new town, or change the name of an existing town, the pro- 
name of town, ceedings in giving a name to such new town, or changing the 
name of an existing town, shall be as follows : The proposed 
name to be given to such new town, or existing town, shall be 
filed in the office of the auditor of public accounts, there to be 
retained for at least one year, and the auditor of public accounts, 
at any time after the filing of such proposed name, shall, upon 
application of said board, grant his certificate stating that such 
proposed name, from information appearing in his office, has 
not been adopted by any city, town, village, or municipal cor- 
poration in this State, which certificate must be obtained by 
said board before any action whatever shall be taken by said 
board toward making such change of name ; and all proceed- 
ings instituted in any court or other place, under a name 
changed, without complying with the provisions of this section, 
shall be held to be void and of no effect. If such name has 
been adopted elsewhere in this State, the auditor of public 
accounts shall so notify the board, whereupon another name 

^Amended, see ante, p. 97. 



MY. IX.] COMMISSIONERS 0^ COOK COUNTY. 353 

shall bo filed in his office, which shall there remain in like Certificate of 

manner as hereinbefore provided, and the certificate shall be name. 

issued by the auditor of public accounts immediately after such 

filing, stating that such name has not been elsewhere adopted, 

whereupon said board may proceed to make such change of 

name, and not before : and all proceedings pending, and all 

rights and privileges acquired in the name of such town, by 

such town, or by any person residing therein, shall be secured 

to such town or person, and such proceedings continued to 

final consummation in such name, the same as though the same 

had not been changed. 

SPECIAL PROVISIONS APPLICABLE TO THE BOARD OF COUNTY 
COMMISSIONERS OP COOK COUNTY. 

Sec. 59. The county of Cook shall be divided into six dis- Districts m 
tricts for the election of county commissioners, and shall be C °° county# 
entitled to elect such commissioners in the respective districts 
as follows: 

First — The towns of South Chicago, North Chicago ana First district. 
West Chicago shall constitute the first district, and shall, on 
the first Tuesday after the first Monday in November, in the 
year 1874, and every three years thereafter, elect four com- 
missioners ; and on the first Tuesday after the first Monday in 
November, in the year 1875, and every three years thereafter, 
elect two commissioners ; and on the first Tuesday after the 
first Monday in November, in the year 1876, and every three 
years thereafter, elect four commissioners. 

Second — The towns of Lake View, Jefferson, Norwood second district. 
Park, Niles, Evanston, New Trier and Northfield shall consti- 
tute the second district, and on the first Tuesday after the first 
Monday of November, in the year 1875, and every three years 
thereafter, shall elect one commissioner. 

Third — The towns of Wheeling, Maine, Elk Grove, Third district. 
Schaumberg, Palatine, Barrington and Hanover shall consti- 
tute the third district, and on the first Tuesday after the first 
Monday of November, in the year 1876, and every three years 
thereafter, shall elect one commissioner. 

Fourth — The towns of Leyden, Proviso, Lyons, Cicero, Fourth district 
Riverside and Lake shall constitute the fourth district, and on 
the first Tuesday after the first Monday of November, in the 
year 1875, and every three years thereafter, shall elect one 
commissioner. 

Fifth — The towns of Hyde Park, Calumet, Worth and Fifth district. 
Thornton shall constitute the fifth district, and on the first 



352 COUNTY AFFAIRS COUNTIES. [DIV. IX. 

Tuesday after the first Monday of November, in the year 

1874, and every three years thereafter, shall elect one com- 
missioner. 

sixth district. Sixth — The towns of Bloom, Rich, Bremen, Orland, Palos 
and Lemont shall constitute the sixth district, and on the first 
Tuesday after the first Monday of November, in the year 

1875, and every three years thereafter, shalll elect one com- 
missioner. 

Term of office. Sec. 60. Their terms of office shall begin on the first Mon- 
day of December after their election, and they shall hold their 
office respectively until their successors are elected and quali- 
fied. 

oath. Sec. 61. The said commissioners shall take the oath of office 

Regular meet- prescribed by the constitution. They shall have regular meet- 
ings on the first Mondays of December, March, June and Sep- 
tember of each year. They shall be known as " The Board 
of Commissioners of Cook County," and as such board of com- 
missioners shall have the management of the county affairs of 
said county, and shall exercise the same powers, perform the 
same duties, be subject to the same rules, regulations and 
penalties as prescribed by law for the board of supervisors. 

cierk of board. Sec. 62. The county clerk of Cook county shall be clerk of 
the board of county commissioners ; and all laws applicable to 
the county clerks of other counties under township organiza- 
tion shall be applicable to him. 

Emergency. Sec. 63. Inasmuch as no law exists providing for the organ- 

ization of the board of county commissioners, in counties not 
under township organization, and the public interest requires 
this act to take immediate effect ; therefore, this act shall take 
effect and be in force from and after its passage. 

Approved PLAXTIXG AXD GROWIXG OF TIMBER. 

February 9. 
In Fopxe 

July i 18,4 . Section 1. It shall be lawful for the board of supervisors 

or county commissioners' court in any county in this State to 

persom for offer a bounty to any person in said county who shall hereafter 

planting trees. p] ant one or more acres of land with forest trees, and properly 

cultivate the same for three years, any sum not to exceed ten 

dollars per annnm for three years for each acre so planted and 

cultivated : Provided, that trees so planted shall not be at a 

greater distance than ten feet apart each way. 

Mate proof. Sec. 2. Any person claiming the bounty under this act shall 

make proof before the county clerk that he has complied with 

section one of this act, and that the trees planted by him are 

in a healthy and growing condition. 



MV. IX.] PLANTING AND GROWING OF TIMBER. 858 

Sec. 3. Upon proof of a compliance with this act the county certificate of 
clerk shall issue his certificate to the person entitled to the cer ' 
same, setting forth that the provisions of this act have been 
complied with and the number of acres so planted. 

Sec. 4. The board of supervisors or county commissioners' Resolution of 
court, desiring to offer the bounty herein provided for, shall do board offering 
so by resolution, to be made of record, and giving notice in boum >- 
some newspaper published in the county three weeks prior to Notice, 
the first day of April of each year ; said resolution and notice 
to state the amount of bounty offered for each acre planted 
and cultivated. 

FEES AND SALARIES — DIVISION OF COUNTIES IN CLASSES. Approved 

March 29, 1872. 



Sec. 13. That, for the purpose of fixing the fees and com- Counties t0 be 
pensation of county and township officers in this State, the f^e^i^es 
several counties therein are hereby divided into three classes, 
according to population, as ascertained by the federal census 
of the year eighteen hundred and seventy, which classes shall 
be known as the first, second aud third, as follows : 

Counties containing a population of not exceeding twenty counties of the 
thousand inhabitants, to wit : The counties of Alexander, Bond, 
Boone, Brown, Calhoun, Carroll, Cass, Clark, Clay, Clinton, 
Crawford, Cumberland, DeWitt, Douglas, DuPage, Edwards, 
Effingham, Fayette, Ford, Franklin, Gallatin, Green, Grundy, 
Hamilton, Hardin, Henderson, Jackson, Jasper, Jefferson, Jer- 
sey, Johnson, Kendall, Lawrence, Marshall, Mason, Massac, 
Menard, Mercer, Monroe, Moultrie, Perry, Piatt, Pope, Pu- 
laski, Putnam, Richmond, Saline, Schuyler, Scott, Stark, Union, 
"Wabash, Washington, Wayne, White, Williamson and Wool- 
ford, shall belong to and be known as counties of the first class. 

Counties containing a population of over twenty thousand counties of the 
and not exceeding seventy thousand, to wit : Adams, Bureau, secou c ass * 
Champaign, Christian, Coles, DeKalb, Edgar, Fulton, Han- 
cock, Henry, Iroquois, Jo Daviess, Kane, Kankakee, Knox, 
Lake, La Salle, Lee, Livingston, Logan, Macon, Macoupin, 
Madison, Marion, McDonough, McHenry, McLean, Mont- 
gomery, Morgan, Ogle, Peoria, Pike, Randolph, Bock Island, 
Sangamon, Shelby, St. Clair, Stephenson, Tazewell, Vermil- 
ion, Warren, Whiteside, Will and AYinnebago, shall belong to 
and be known as counties of the second class. 

Counties containing a population exceeding seventy thou- counties of the 
sand inhabitants, to wit : The county of Cook, shall belong to 
and be known as counties of the third class. 




354 COUNTY AFFAIRS — COUNTY SEATS. [DIV. IX. 



2. REMOVAL OF COUNTY SEATS. 

Section 1. The words "county court" or " court," as they 
WordTdefined a PP ear ^ n an act entitled " An Act to provide for the removal 
of county seats," approved March 15, A.D. 1872, except in 
sections 12 and 13 thereof, shall be deemed, taken and held to 
mean the county court for the transaction of probate and other 
judicial business; and the words "county court," as used in 
section 12 of said act, shall be held to mean the county court 
for the transaction of county business. [ Amendatory Act, 
1874.] 

ps.309. AppI Sec. 1. That all elections for the removal of county seats 
! * shall be held on the second Tuesday after the first Monday of 
November, at the usual places of holding elections ; and the 
Election for same persons who were judges and clerks at the next preceding 
removal of general election, in their respective election precincts, shall 
wher/and~ act as judges and clerks of such county seat elections; and 
when held. a ^ vacancies in the respective boards of election shall be filled 

in the same manner as at general elections. 
Public notice " Sec. 2. Public notice shall be given of the intention to 
removano be circulate a petition praying for an election for the removal of 
given. t | ie coun ty sea t f anv county from its then present location 

to some other point within said county, and in said petition 
designated, at least ten days before the same is circulated, 
by publication in some newspaper printed in said county, and 
by posting three printed notices in three public places 
at the county seat, one of which shall be placed on the court 
house door, and a like number at the place to which the county 
seat is proposed to be removed, in which notices the intent of 
such petition shall be set forth ; and all signers to such petition 
procured before such notice is given, or procured six months 
before the first day of the term of court at which the application 
is to be made, shall be void, and stricken from such petition ; 
and whenever such petition or petitions," addressed to the 
county clerk of such county, and stating the time when such 
election shall be held, shall be signed by a number of legal 
voters of said county, at general elections, who are not resi- 
dents of the city, or township (if the county seat is not in 
a city) in which the county seat is located, equal in number 
to two-fifths of all the votes cast in said county at the last 
preceding presidential election therein, and shall be filed in 



DIV. IX.] BBMOVAL OF COUNTY SEATS. 355 

the office of the clerk of the county court of said county, not 
less than forty nor more than eighty days before the first day 
of the next September term of the county court in such county, 
such per it ion shall be deemed a proposal to remove the county 
seat ot' such county, and the point designated in such petition 
shall be deemed and taken as fixed by said petition, in pursu- 
ance of law, whenever the court shall order an election to such 
point as hereinafter provided, as the point to which it is pro- 

to remove the county seat of such county. There shall .•» 
also be filed in the office of said clerk, with said petitions, an 
affidavit of three legal voters of said county stating whether or ^e^Sgai f 
not the point named in said petition or petitions, to which it yoters as to dis- 

r , . r r» i • tance of place 

is proposed to remove the county seat ot such, county, is nearer from centre of 
to or further from the centre of such county than the county med witn US 
seat, Which affidavit may be traversed by the affidavit of county derk< 
any other three legal voters of said county within ten days 
from the filing thereof; and if so traversed the county court 
shall, at the next September term of said court, after hearing 
evidence in the case, decide whether or not the point to which 
it is proposed to remove the county seat, is nearer to or further 
from the centre of said county than the county seat. 

Sec. 3. Each petitioner signing such petition shall write or How petition 
cause to be written opposite to his name on said petition, the mu£t be signed. 
name of the city and ward in which he then resides, if he 
resides in a city, or if he does not reside in a city, then the 
name of the precinct or township in which he resides at the 
time of signing such petition ; and no person shall sign such 
petition unless he shall be, at the time, a legal voter in said 
county at general elections. 

Sec. 4. Said petition or petitions shall, after the same are Petition shall 
filed in the office of the clerk of the county court, be open to \f c fcJinspec-' 3 " 
the inspection of any and all citizens of the county, but shall tion - 
not be removed therefrom. 

Sec. 5. Any citizen and legal voter at general elections in Right to sign 
said county, may contest the right of any person whose name Sed. e C ° n " 
is subscribed to said petition, to sign such petition under this 
act, and shall also have the right to contest said petition as to 
any names subscribed thereto that he shall have good reason 
to believe and does believe, are fictitious, and no others: Pro- Proviso as to 
vided, he shall, ten days before the first day of the next Sep- which the right 
tember term of the county court, file in the office of the clerk tSted be Cun " 
of the county court of such county, a list of the names of such 
persons whose right to sign such petition he is desirous of con- 
testing, together with his affidavit, indorsed thereon, that he 
has good reason to believe, and does verily believe, that such 



356 COUNTY AFFAIRS — COUNTY SEATS. [DIV. IX. 

persons named in said list are not legal voters of such county, 
and had no right in law to sign said petition ; and shall also 
file in the office of said clerk, ten days before said September 
term, a list of such names as he has reason to believe are ficti- 
tious, together with his affidavit, indorsed thereon, thai he has 
good reason to believe, and does verily believe, that such 
names are fictitious ; and such persons shall have the right to 
contest such petitions only as to the names included in said 
lists. 
Notice of filing Sec. 6. Whenever such petition or petitions and affidavit 
the petition named in section two of this act shall be filed in the office of 

must be pub- ., . 

Hshed within the cierk of the county court 01 such county, it snail be the 
duty of the clerk, within ten days from the date of the filing 
of said petition or petitions and affidavit in his said office, to 
cause to be published in one or more newspapers published in 
such county, and if no newspaper shall be published in said 
county then in the newspaper published nearest to the county 
seat of said county, a notice that such petition or petitions 
and affidavit have been filed in his said office, stating the time 
when they were so filed, and setting forth therein the sub- 
stance of such petition or petitions and affidavit, and giving 
notice that on the first day of the next September term of 
said court, said court will hear testimony for and against said 
petitions, as to the list or lists of names on such petition, as 
may be filed in his office under and in compliance with section 
five of this act, and for or against such affidavit if the same 

conntv court has been traversed, as provided in section two of this act. It 

d^nceftM^and Sna ^ ' 3e tne ^ u ty °^ Sa ^ court > on tne ^ rst day °f anc * during 

against petition the said September term, to hear all evidence for and against 
said petition or petitions, as to the list or lists of names, filed 
in said court under section five of this act, and to strike from 
such petition or petitions all such names proven by compe- 
tent evidence to be fictitious, or the names of persons having 
no legal right to sign the same under this act; and in case 
there shall be but one petition and no contest as to the same, 
or if there shall be a contest as to the same, and said petition 
shall, after striking therefrom all fictitious and illegal names, 
still contain the number of names of legal voters required by 
the second section of this act, the court shall order said elec- 
tion, according to the prayer of said petition. But in case 
there shall be two petitions filed in said court, praying for a 
vote to remove the county seat of such county to different 
points in said county, each, after striking therefrom all illegal 
and fictitious names, still being signed by two-fifths of the legal 
voters of the county, as required by section two of this act, 



DIV. TX.] REMOVAL OF COUNTY SEATS. 357 



then if the petition praying for a vote to remove the county 
seat nearer to the geographical centre of the county than the 
point named in the other petition shall be signed by a number 
of names equal to or greater than one-half of the sum of the 
names signed to the two petitions, the said court shall order 
the election for the removal of the county seat to that point 
nearest to the geographical centre of the county, according to 
the prayer of said petition ; but if the other of said two peti- 
tions shall be signed by a number of legal voters of said county 
equal to three-fifths of the sum of the names signed to the 
two petitions, then the court shall order the election for the 
removal of the county seat of such county to said last men- 
tioned point, and not otherwise. In case of a contest as to 
said petition or petitions, as provided for in this act, it shall 
be the duty of the clerk of said court, on request of the person 
contesting any petition under the provisions of this act, to 
issue subpoenas for such witnesses as said person shall name ; 
and it shall be the duty of said clerk, on request of any legal 
voter of the county, for the purpose of sustaining any petition, 
in like manner to issue subpoenas for such witnesses as he 
shall name — said subpoenas to be made returnable to the 
term of court at which such contest will be made. 

Sec. 7. AH cases of contest arising upon said petitions or Contested 
affidavit shall have precedence over all other cases at the cases- how ^ 
September term of said court, and shall be heard and deter- termined. 
mined at said term, and the decision of the county court shall 
be final. And in case of the sickness or other inability of said 
county judge to preside, or in case of a vacancy in said office, 
then it shall be the duty of the circuit judge of the circuit in 
which said county is located, to attend, hear and determine 
said contest. 

Sec. 8. Whenever the court shall order any county seat elec- challengers 
tion under the provisions of this act, the court shall appoint pohi'tedJfsuch 
three resident legal voters of the point to which it is proposed ^f^-^es'of 
to remove the county seat, for each and every voting place in election. 
the city, precinct or township in which the county seat is 
situated, also to appoint three resident legal voters of the 
county seat for each and every voting place in the city, pre- 
cinct or township to which it is proposed to remove the county 
seat, to sit with the regular judges to act as challengers of 
election at the voting places to which they are respectively 
assigned, and it shall be their duty to act as such challengers, 
and to challenge any and all persons whom they have good 
reason to believe are not legal voters at such county seat elec- 
tion and they shall sit with such judges of election until the 



358 COUNTY AFFAIRS — COUNTY SEATS. [FIT. IX. 

close of said election, and during the canvas? of the votes at 

said election. The said challengers, who are thus appointed 

to act with the regular judges of election, may. if they desire 

so to do, make an affidavit before any person authorized to 

administer oaths, setting forth in such affidavit that they have 

been appointed,, as above provided, out of the city, precinct, 

township or ward, where they would otherwise be voters, and 

that they desire to vote at such county seat election ; which 

affidavit, together with the ballot, shall be sealed up in an 

envelope and left with one of the judges of election "for the 

precinct, and on the day of election shall be by him presented 

to the board of election and opened in their presence. The 

affidavit shall be filed, kept and returned with the ballots for 

that precinct as other affidavits are. and the ballot shall be 

numbered and deposited in the ballot box. and the name 

entered on the poll books the same a* other votes are. 

voting shall be Sec. 9. The voting at county seat elections shall be by 

by ballot. ballot, and each ballot shall have printed or written thereon 

Form of baUot. the words " For removal," or "Against removal." The polls 

Polls— time of shall be opened at eight* o'clock A. M., and remain open until 

cSg g and six o'clock P. M-, at which time the polls may be closed, unless 

a majority of the board shall determine to keep open later. 

But the polls shall not, in any event, be kept open later than 

eight o'clock P. M. of the day of said election. 

Registration §ec. 10. No registration of voters shall be made or required 

not required. f or hol^g an y county seat election under this act. The board 

of election shall, in each township, precinct or ward, keep two 

lists or poll books of the names of the persons whose votes are 

received : each name shall be numbered, and a corresponding 

number marked on each ballot before it is placed in the ballot 

box, which said poll books shall each be certified as correct by 

Returns— how the judges and clerks of election. At the close of the polls 

canvassed. -^ ^^ precinct, township or ward, the board of election shall 

canvass the votes cast at such poll or voting district, and shall 

make two tally lists, one of which, together with one of the 

aforesaid poll books, and the ballots cast in such precinct. 

township or ward, properly strung, and the affidavits made at 

such election, and certificate of the result of said election 

made and certified by such board, shall be sealed up together 

and delivered by one of the board of election, to be selected by 

the said board at that time, to the county clerk, within four 

days thereafter. The other poll book and tally list shall be 

retained by one of the judges of election for that township. 

precinct or ward. 

Sec. 11. Xo person shall vote at said election who does 



DIV. IX.] REMOVAL OF COUNTY SKATS. 359 

not possess the qualifications mentioned in the affidavit in this persons cliai- 
Bection. Any person offering to vote at any county seat {SBmSt 11 
election, whose right to xotc shall be challenged by any clial- 
r, member of the board of election, or by any voter of 
the eountv, shall answer under oath such questions as may be 
propounded to him touching his qualifications as a voter, and 
shall take and subscribe the following oath : 

State of Illinois, \ 

County, j ' 

I do solemnly swear that I am a citizen of the United States, and Form of oath, 
of this State [or I was an elector in this State on the first of April, 
eighteen hundred and forty-eight, or obtained a certificate of natu- 
ralization before a court of record in this State prior to the first of 
January, eighteen hundred and seventy, and] that I am above the 
age of twenty-one years; that I have resided in this State for one 
year immediately preceding this election ; that I am a bona fide 
resident of this county, and have permanently resided herein for 
i he last six months immediately preceding this election ; that I am 
a legal voter of [here insert the name of the election precinct], and have 
permanently resided therein for the last ninety days immediately 
preceding this election, and that I have not voted at this election. 
ued) A. B. 

He shall also procure two witnesses, who are at that time Must also pro- 
legal voters of the township or precinct, who shall take and^eSes? ^" 
subscribe the following oath, namely : 

State of Illinois, ") 

County, j ' 

\Ye, the undersigned, do solemnly swear that we are voters, and Form of oath 
legally entitled to vote at this election; that we have known A. B., to be taken by 
the person now offering to vote at this election, for six months ; that witness - 
lie has been a permanent resident of this county for six months past, 
and for the ninety days immediately preceding this election has , 

permanently resided in [township or precinct.] 

CD., 
E. F. 

Which oath shall be subscribed and sworn before any officer 
authorized to administer oaths. The board of election shall 
receive and count the vote of any challenged person who shall 
present to them with his vote the oaths aforesaid. The said 
oaths shall all be carefully preserved by the board of election, 
and returned and kept with the poll book, tally list and bal- 
lots, as provided by this act. Any person swearing falsely 
concerning his right to vote, or concerning the right of another 
to vote at any such election, or any person who shall cast a 
fraudulent vote at any such election, or who shall vote at such 
election not having a right to vote at such election, or who 
shall cast a vote at such election in any other name than his 



360 COUNTY AFFAIRS — COUNTY SEATS. [DIV. IX. 

Penalty for own, or who shall vote more than once at such election, shall 
K orSStSg 6 " De deemed guilty of a high misdemeanor, shall be liahle to be 
votefetc. nt indicted therefor, and shall, on conviction, be punished by 
confinement in the penitentiary to hard labor for a term of 
not less than one year nor more than five years. 
Number of $ec. 12. The number of legal votes cast at any county seat 

shin betaken* e ^ ect i° n ne ^ under this act, shall be deemed and taken for the 
as prima facie purposes of such an election as 'prima facie evidence of the 
number of legal number of legal voters of that county at that time, "entitled to 
county. 11 such y ote on the question; but in case it shall become necessary, in 
consequence of a contest of an election held under this act, to 
ascertain the number of voters of the county entitled to vote 
upon the question, the court in which the contest may be 
pending may ascertain the number of such voters by taking, 
or causing to be taken, legal evidence, tending to- show the 
actual number of the legal voters of the county, entitled to 
vote upon such question at the time of such election. Courts 
of equity shall have jurisdiction of all cases of contested elec- 
tion arising under this act, and may investigate and determine 
all questions of fraud and fraudulent voting connected there- 
with, and purge the poll books and returns of all illegal or 
fraudulent votes; and may investigate and ascertain the total 
number of legal voters of the county at the time of such elec- 
tion entitled to vote on the question, whether they voted or 
not, and ascertain and determine whether or not such election 
was fairly carried by three -fifths or a majority of all the legal 
voters of the county, as required by the Constitution, and make 
such decree as the circumstances of the case may require. 
Any of the legal voters and taxpayers of the county who may 
, desire so to do, as well as the town, city or village, to or from 

which it is proposed to remove such county seat, may be made, 
or on their petition may become parties to such suits, either as 
complainant or defendant." 
Votes, by Sec' 13. On or before the first Tuesday after said election, 

counted? w the clerk of the county court shall summon to his aid two jus- 
tices of the peace, one of whom shall be a resident of the place 
to which it is proposed to remove the county seat, and the 
other a resident of the county seat, if such there be, and if 
there be no justices of the peace resident in those places, then 
any two justices of the peace of said county, who shall, together 
with said clerk, open and canvass the votes and returns of said 
election, made and filed in his office, in the same manner as 
now provided by law in the case of elections for county officers ; 
the result of which canvass shall, by the clerk of the county 
court, be spread on the records of the county court in counties 



THY. IX.] FEES AND SALARIES. 3G1 

not under township organization, and on th^ records of the 
hoard of supervisors in counties under township organization, 
and also by him be duly certified to the secretary of state. 

SRC. 14. When the attempt is made by such an election to Number of 
remove a county seat to a point nearer to the centre of such for zemovid. 
county than the county seat then is, and a majority of the 
legal voters of said county entitled to vote on the question of 
removal shall be " for removal," the county seat is thereby 
removed to the point named in the petition. When the 
attempt is made by such an election to remove a county seat 
to a point not nearer to the centre than the county seat then 
is, and three -fifths of the legal voters of such county entitled 
to vote on the question shall be "for removal," then said 
county seat of said county is thereby removed to the point 
named in the petition. 

Sec. 15. Any member of the board of election, . county Penalty for 
judge, associate justice, county clerk, sheriff, or any other part of any om- 
officers or persons who may be charged with the performance u?e dmfe? im? 
of any duty under this act, and who shall willfully fail therein, £° t sed b > r thls 
or shall perform such duty otherwise than is in this act pre- 
scribed, shall be deemed guilty of a misdemeanor, shall be 
liable to be indicted therefor, and on conviction shall be fined 
not less than five hundred dollars nor more than five thousand 
dollars, or imprisoned in the county jail not less than oix 
months nor more than one year, or both. 



362 



COUNTY AFFAIRS COUNTY CLERKS. 



[DIV. IX. 



Approved 

Makch 24. 

In Force 

Jult 1, 1874. 



3. COTTXTY CLERKS. 



Take oath of 
office. 



Fcrrn of oath. 



Give bond. 



Section 1. Each county clerk, before entering upon the 
duties of his office, shall take and subscribe the following oath, 
which shall be entered at large upon the records of his office : 

I do solemnly swear [or affirm, as the case may be,~\ that I will sup- 
port the Constitution of the United States and the Constitution of 
the State of Illinois, and that I will faithfully discharge the duties 

of the office of county clerk of county according to the best 

of my ability. 

Sec. 2. Each county clerk shall, before entering upon the 
duties of his office, give bond in such penalty and with such 
security as the county board shall deem sufficient, which bond 
shall be substantially in the following form, and shall be 
Record bond, recorded at large upon the records of his office, and when so 
recorded shall be deposited with the clerk of the circuit court 
for safe keeping : 

Form of bond. Know all men by these presents, that we, A. B., principal, and C. D. 

and E. F., sureties, all of the county of , and State of Illinois, 

are held and firmly bound to the people of the State of Illinois, in 

the penal sum of dollars, for the payment of which, well and 

truly to be made, we bind ourselves, each of us, our heirs, executors 
and administrators, firmly by these presents. Signed with our hands, 
and sealed with our seals. 

Dated at , the day of , 18 — . 

The condition of the above bond is such, that if the above bounden 
A. B. shall perform all the duties which are or may be required by 
law to be performed by him as county clerk of the said county of 

, in the time and manner prescribed, or to be prescribed by 

law, and when he shall be succeeded in office, shall surrender and 
deliver over to his successor in office all books, papers, moneys and 
other things belonging to said county, and appertaining to his said 
office, then the above bond to be void ; otherwise to remain in full 
force. 

Signed, sealed and delivered in the presence of G. H. 



Condition. 



A. B. 
CD. 
E. F. 



SEAL.] 
SEAL.] 
SEAL.] 



Commission. 



OfF.ce at court 
house. 



Sec. 3. County clerks shall be commissioned by the 
governor. 

Sec. 4. The county clerk shall keep his office at the court 
house of his county or at such other place as may be provided 
for him by the authorities of such county at the county seat. 
Keeper of seal. Sec. 5. He shall be keeper of the seal of the county, which 
shall be used by him in all cases where he is required to use 
an official seal. 

Sec. 6. He may appoint deputies, who shall take and sub- 
scribe the same oath for the discharge of their duties as is 
required of him, which shall be entered of record in his office. 



Appoint 
deputy. 



MV. IX.] COUNTY CLERKS. 3G3 

.7. The principal clerk shall in all cases be responsible Acts of deputy. 
for the acts of his deputies. 

Sec. 8. Whenever a vacancy occurs in the office of any Vacancy, 
county clerk, and the unexpired term exceeds one year, the 
county board of the county shall immediately appoint a clerk 
pro tempore, -who shall qualify by giving bond and taking the Clerk pro tem. 
oath as required of the county clerk, and shall thereupon per- 
form all the duties and be entitled to all the emoluments and 
be subject to all the penalties appertaining to the office of 
county clerk until the successor of such clerk is elected or 
appointed and qualified. 

Sec. 9. The county clerks shall have the care and custody custody of 
of all the records, books and papers appertaining to and filed 
or deposited in their respective offices, and the same shall be 
open to the inspection of all persons without reward. 

Sec. 10. The duties of the county clerk shall be — Duties. 

First — To act as clerk of the county board of his county, cierk of 
and to keep an accurate record of the proceedings of saia uri 
board, file and preserve all bills of account acted upon by the Keep record - 
board, and when any account is allowed or disallowed, he shall 
note that fact thereon, and when a part of any account is 
allowed he shall note particularly the items allowed. 

Second — To keep a book in which he shall enter the num- Order book, 
ber, date and amount of each order upon the county treasurer, 
and the name of the person in whose favor the same is drawn, 
and when such order is canceled, he shall note the date of can- . 
cellation opposite such entry. 

Third — Before any such order is delivered to the person Orders to be 
for whose benefit it is drawn, the county clerk shall present coun ersigne 
the same to the county treasurer, who shall personally counter- 
sign the same. 

Fourth — To keep a book, in which shall be entered in Book for 
alphabetical order, by name of the principal, a minute of all 
official bonds filed in his office, giving the name of the office, 
amount and date of bond, names of sureties and date of filing, 
with such reference to the number or other designation of the 
bond, that the same may be easily found. 

Fifth — To keep proper alphabetical indexes of all records index of 

di . x rr records, 

papers in his omce. 

Sixth — To give any person requiring the same, and paying Give copy of 
the lawful fees therefor, a copy of any record, paper or account 
in his office. 

Seventh — Such other duties as are or may be required by other.duties. 
law. 

24 



364 



COUNTY AFFAIRS COUNTY TREASURERS. [dIY. IX. 



Approved 
Febbuaby 25. 

Ik Foece 
Jult 1, 1874. 



4. COUNTY TREASURERS. 



Take oath. 



Form, of oath. 



Give bond. 



Form of bond. 



Condition. 



Bond to be 
filed. 



Commission. 



Keep public 
moneys. 



Keep books of 
account. 



Section 1. Each county treasurer, before entering upon the 
duties of his office, shall take and subscribe and file with the 
county clerk the following oath : 

I do solemnly swear [or affirm, as the case may be,~\ that I will sup- 
port the Constitution of the United States and the Constitution of 
the State of Illinois, and that I will faithfully discharge the duties 

of the office of treasurer of the county of , according to the 

best of my ability. 

Sec. 2. Each county treasurer, before he enters upon .the 
duties of his office, shall also execute a bond in such penalty 
and with such security as the county board shall deem sufficient, 
which bond shall be in substance in the following form, to wit : 

Know all men by these presents, that we, A. B., principal, and C. D. 

and E. F., sureties," all of the county of , and State of Illinois, 

are held and firmly bound to the people of the State of Illinois, in 

the penal sum of dollars, for the payment of which, well and 

truly to be made, we bind ourselves, each of us, our heirs, executors 
and administrators, firmly by these presents. Signed with our hands, 
and sealed with our seals. 

Dated at , the day of , 18—. 

The condition of the above bond is such, that if the above bounden 
A. B. shall perform all the duties which are or may be required by 

law to be performed by him, as treasurer of the said county of -, 

in the time and manner prescribed or to be prescribed by law, and 
when he shall be succeeded in office, shall surrender and deliver 
over to his successor in office all books, papers, moneys and other 
things belonging to said county, and appertaining to his said office, 
then" the above bond to be void ; otherwise to remain in full force. 

Signed, sealed and delivered in the presence of G. H. 

A. B. [seal 
C. D. [seal 
E. F. [seal/ 

Which bond shall be filed with the county clerk on or before 
the first Monday of December after such election. 

Sec. 3. The 'county treasurer shall be commissioned by the 
governor. 

Sec 4. The county treasurer shall receive and safely keep 
the revenues and other public moneys of the county, and ail 
money and funds authorized by law to be paid to him, and dis- 
burse the same pursuant to law. 

Sec 5 Every county treasurer shall keep proper books of 
account, in which he shall keep a regular, just and true 
account of all moneys, revenues and funds received by him, 
stating particularly the kind of funds received, whether m 
gold, silver, county orders, jury certificates, auditor's warrants 
or other funds authorized by law to be received as revenue, the 



IUY. IX.] COUNTY TREASURERS. 365 

time when, of whom, and on what account each particular sum 
in money or other funds was received; and also of all moneys, 
revenues and funds paid out by him agreeably to law, stating 
particularly the time when, to whom, and on what account 
payment is made. 

Sec. 6. Said books of account shall be free to the inspec- Books free to 
tion of all persons wishing to examine the same. inspection. 

Sec. T. When any county order is presented to him to be countersign 
countersigned, the county treasurer shall personally counter- county orders ' 
the same, and shall also enter in a book, to be kept by j^ter orders in 
him for that purpose, its number, date and amount, and the 
name of the person to whom the same is payable, and when any 
such order is paid, he shall cancel the same, and note the fact 
opposite such entry. 

Sec. 8. The county treasurer shall not countersign any order filled up 
county order before the same is filled up, nor until he ^| f °[^ ounter " 
shall have examined the records of the county board, and 
ascertained that the issuing of sucli order is warranted 
thereby. 

Sec. 9. Xo money or funds shall be paid out of any county Payment only 
treasury except in accordance with an order of the county board! er ° f 
board, or when payment is specifically authorized by law to be 
made. 

Sec. 10. The county treasurer of each county shall report Report to 
to the county board at each regular term thereof, the amount county board " 
of money, county orders, jury certificates and other funds he 
may have received from every source since his last accountino; 

. . Details of 

siating by whom, on what account and at what time paid into report. 
the treasury ; and also the amount of all payments from the 
treasury, stating particularly to whom, on what account and at 
what time paid out; also the amount of money, county orders, 
jury certificates and other funds in his hands. 

. 11. Sa.id report shall be filed and preserved in the Report filed, 
office of the county clerk, and be free to the inspection of any 
person wishing to examine the same. 

Sec. 12. The county treasurer shall, at any time when Make 
required by the county board, render an account and makc settlement " 
settlement with the county. 

. 13. It shall be the duty of the county board, at least county board 
once every six months, to examine the books of account of the^™ 11 " 11 ^ 001 ' 8, 
treasurer, and count the funds, and make settlement with the 
county treasurer, and the county clerk shall enter on the re- 
cords of the county board the amount and kinds of funds found 
to be in the treasury at such time. 



366 COUNTY AFFAIRS COUNTY TREASURERS. [DIV. IX. 

Examine Sec. 14. The county board of each county shall have power 

under oat . ^ an y ^ me ^ Q examme ^he coun ty treasurer under oath, 

touching any matter in regard to the faithful discharge of his 
duty. 
Refusal to Sec. 15. If any county treasurer shall neglect or refuse to 

account. render an account or make settlement at any time when 

required by law, or by the county board, or refuse to answer 
any question propounded to him by the county board, or is a 
defaulter and in arrears with the county, or is guilty of any 
County board other misconduct in his office, the county board may remove 
may remove. hj m f rom office, and may appoint some suitable person to per- 
form the duties of treasurer until his successor is elected or 
appointed and qualified. The person so appointed shall give 
bond and security as required by law of the county treasurer. 
Penalty for Sec. 16. If any treasurer of any county in this State shall 

neglect of duty. ne glect or refuse to perform any of the duties required of him 
by this act, he shall forfeit a sum of not less t*han fifty dollars 
and not exceeding one thousand dollars, according to the nature 
and aggravation of the offense, to be recovered by indictment 
in the circuit court of the proper county, or by action of debt 
by any person who shall sue therefor, one half to the person 
suing, and the other half to the proper county. 



div. ix.] state's attorneys. 367 

5. STATE'S ATTORNEYS.(l) 

Sec. 5. The duty of each state's attorney shall be : Duty 

First — To commence and prosecute all actions, suits, indict- Prosecute suits 
ments and prosecutions, civil and criminal, in any court of for people - 
record in his county, in which the people of the State or county 
may be concerned. 

Set mid — To prosecute all forfeited bonds and recognizances, Prosecute 
and all actions and proceedings for the recovery of debts, reve-coun?y, f °schooi 
nues, moneys, fines, penalties and forfeitures accruing to the ^ r g t a s ^ etc 
State or his county, or to any school district or road district in 
his county; also, to prosecute all suits in his county against 
railroad or transportation companies, which may be prosecuted 
in the name of the People of the State of Illinois. 

Third — To commence and prosecute all actions and pro- For county 
ceedings brought by any county officer, in his official capacity. officer - 

Fourth — To defend all actions and proceedings brought Defend suits. 
against his county, or against any county or State officer, in 
his official capacity, within his county. 

Fifth — To attend the examination of all persons brought Attend 
before any judge on habeas corjms, when the prosecution is in examination, 
his county. 

Sixth — To attend before justices of the peace and prosecute Before justice 
charges of felony or misdemeanor, for which the offender i s of P eace - 
required to be recognized to appear before a court of record, 
when in his power so to do. 

Seventh — To give his opinion, without fee or reward, to any Give opinion, 
county officer and to justices of the peace, in his county, upon 
any question of law relating to any criminal or other matter in 
which the people of the county may be concerned. 

Eighth — To assist the attorney general wdienever it may be Assist attorney 
necessary, and in cases of appeal or writ of error from hi s g eneral - 
county to the supreme court, to which it is the duty of the 
attorney general to attend, he shall, a reasonable time before 
the trial of such appeal or writ of error, furnish the attorney 
general with a brief, showing the nature of the case and the 
questions involved. 

Ninth — To pay all moneys received by him in trust, with- p ay over 
out delay, to the officer who by law is entitled to the custody mone y- 
thereof. 

Tenth — To perform such other and further duties as may, other duties, 
from time to time, be enjoined on him by law. 

(1) A state's attorney is elected in each county, who becomes a county officer 
See Div. VIII., " Elections," Sec 24, ante, p. 302. 



368 



COUNTY AFFAIRS — STATE S ATTORNEYS. 



[diy. IX. 



In cases of 
delinquent 
taxes. 



"When unable 



Act repealed. 



Eleventh — To appear in all proceedings by collectors of 
taxes against delinquent tax-payers for judgments to sell real 
estate, and see that all the necessary preliminary steps have 
been legally taken to make the judgment legal and binding. 

Sec. 6. Whenever the attorney general or state's attorney 
is sick or absent, or unable to attend, or is interested in any 
cause or proceedings, civil or criminal, which it is or may be 
his duty to prosecute or defend, the court in which such cause 
or proceeding is pending may appoint some competent attorney 
to prosecute or defend ' such cause or proceeding ; and the 
attorney so appointed shall have the same power and authority, 
in relation to such cause or proceeding, as the attorney general 
or state's attorney would have had if present and attending to 
the same ; and the court may make an order allowing the 
attorney so appointed reasonable compensation for his services, 
a copy of which order shall be certified by the clerk of such 
court to the auditor of public accounts, who shall issue a war- 
rant for the payment thereof to the attorney so appointed, and 
the amount of such warrant shall be deducted from the salary 
of the attorney general or state's attorney whose duties have 
been performed as aforesaid. 

Sec. 7. That an act entitled " An act in regard to attorneys 
general and state's attorneys," approved March 22, 1872, is 
hereby repealed : but the repeal of said act shall not affect any 
of said attorneys now in office, or any rights or liabilities that 
shall have accrued when this act shall take effect. 



DIV. IX.] WEIGHTS AND MEASURES. 369 

6. WEIGHTS AND MEASURES. 

Ai'pnov; d_ 
m . . .. . February 27. 

CIQN 1. The weights and measures received from the In Force 

United States, and now in charge of the secretary of state, to ,_ ' '_] 
wit : one yard measure, one half bushel, one wine gallon, one 
wine quart, one wine pint, one wine half-pint, one set of aver- ^|j|ures of 
dupoia weights, consisting of fifty, twenty-five, twenty, ten, ti™ u. s the 
five, four, three, two and one pounds, and from eight ounces 
down to one drachm ; one set of troy weights, from five thou- 
sand pennyweights down to half a grain, and from one pound 
down to the ten-thousandth part of an ounce, together with 
the three sets of balances, when received from the United 
States, shall be and remain and be used as the sole authorized 
public standard of weights and measures. 

Sec. 2. Such weights, measures and balances as may be Thosc received 
procured, from time to time, to replace those before mentioned, o^l^ 18-06 
shall be preserved in the same form, and of the same dimen- preserved ir- 
sions, the denominations of the weights and measures being 
marked thereon, respectively ; and they shall be sealed with 
the seal which is kept for that purpose by the state sealer. 

Sec. 3. All commodities sold by heaped measure shall be Heaped 
duly heaped-up in the form of a cone, the outside of the measure - 
measure by which the same shall be measured to be the limit 
of the base of such cone, and such cone to be as high as the 
articles to be measured will admit. 

Sec. 4. The measures used for measuring dry commodities, stricken 
not heaped, shall be stricken with a straight stick or roller, measure - 
and of the same diameter from end to end. 

Sec. 5. The hundred weight shall consist of one hundred 100 weight. 
pounds, and twenty such hundred weights shall constitute a ton. Ton weight 

Sec. 6. Contracts hereafter to be executed, made within this Contracts 
State, for any work to be done, or for anything to be sold, fSSiani by 
delivered, done or agreed for, by weight or measure, shall be 
taken and construed to be made according to the standard 
weight and measure thus ascertained. 

Sec. 7. Whenever any of the following articles shall be con- when no 
tracted for, or sold or delivered, and no special contract or^^ ct 
agreement shall be made to the contrary, the weight per 
bushel shall be as follows, to wit : 

Stone coal, 80 pounds; unslacked lime, 80 pounds; corn in weight per 
the ear, 70 pounds; wheat, 60 pounds; Irish potatoes, 60^ r s ^ s of 
pounds ; white beans, 60 pounds ; clover seed, 60 pounds ; articles 
onions, 57 pounds ; shelled corn, 56 pounds ; rye, 56 pounds; 
flax seed, 56 pounds ; sweet potatoes, 55 pounds ; turnips, 55 
pounds ; fine salt, 55 pounds ; buckwheat, 52 pounds ; coarse 



870 



COUNTY AFFAIRS WEIGHTS AXD MEASURES. [dIV. IX. 



Penalty for 
givingless 
pounds per 
busnel. 



Double 
amount. 



Secretary of 
state, state 
sealer. 



Duty. 



salt, 50 pounds ; barley, 48 pounds ; corn meal, 48 pounds ; 
castor beans, 46 pounds ; timothy seed, 45 pounds; hemp seed, 
44 pounds; malt, 38 pounds; dried peaches, 33 pounds; oats, 
32 pounds ; dried apples, 24 pounds ; bran, 20 pounds ; blue 
grass seed, 14 pounds; hair (plastering), 8 pounds. 

Sec. 8. Whoever, in buying any of the articles of property 
mentioned in the preceding section, shall take any greater 
number of pounds thereof to the bushel, or in selling any of 
said articles, shall give any less number of pounds thereof to 
the bushel than is allowed by said section, with intent to gain 
an advantage thereby, except where expressly authorized so to 
do by special contract or agreement to that effect, shall be 
liable to the party injured in double the amount of the prop- 
erty so wrongfully taken or not given, and ten dollars in addi- 
tion thereto, to be recovered in any form of action, in any court 
of competent jurisdiction. 

Sec. 9. The secretary of state shall be, ex officio, state 
sealer of weights and measures, and shall have the care and 
custody of the authorized public standards of weights and 
measures. He shall try and prove, by such standards, all 
weights and measures, scales and beams which may belong to 
any county, and be sent or brought to him for that purpose by 
the county sealer, and shall seal such, when found to be accurate, 
by stamping on them the letter " I," with a seal which he shall 
have and keep for that purpose. 

Sec. 10. The county clerk of each county shall be the sealer 
of weights and measures for the county, and shall have the 
care and custody of the county standards. He shall procure, 
at the expense of the county, when authorized by the county 
board, and not already provided, a full set of weights and 
measures, scales and beams, which he shall cause to be tried, 
proved and sealed by the State standards, under the direction 
of the secretary of state. 

Sec. 11. The several county sealers shall try and prove all 
weights and measures, scales and beams, when requested so to 
do ; and when the same are found or made to conform to the 
legal standards, they shall seal and mark such weights and 
measures, with a seal to be kept by them for that purpose. 

Sec. 12. The secretary of state and each county sealer shall 
be entitled to receive for his services, at and after the following 
rates : For sealing and marking every beam, ten cents ; for 
sealing and marking measures of extension, at the rate of ten 
cents per yard, not to exceed fifty cents for any one measure ; 
for sealing and marking every weight, two cents ; for sealing 
and marking liquid and dry measures, if the same be of the 



County clerk, 
county sealer. 

Duty. 



Try weights 
and measures. 



Seal the same. 



Compensation 
of state and 
county sealers. 



THV. TX-] WEIGHTS AND MEASURES. 371 

capacity of a gallon or more, ten cents, of less than a gallon, 
five cents. They shall also be entitled to a reasonable com- 
pensation for making such weights and measures conform to 
the standard established by this act. 

Sec. 13. Every county clerk who neglects to have the stand- Penalty on 
ards under his charge compared and sealed as required by this neglecting 1 
art. or neglects to keep the same in good order and repair, or duty * 
who Buffers any of them, through his neglect, to be lost, dam- 
aged or destroyed, shall forfeit to the county not less than fifty 
nor more than two hundred dollars, to be recovered before any 
justice of the peace of the county. 

Sec. 14. Whoever sells by any other weights, measures, Penalty to sell 
scales, beams or balances than such as conform to such stand- weighS. IQCt 
ards, shall forfeit a sum not exceeding twenty dollars for each 
offense, and when by the custom of trade they are provided by 
the buyer, if he purchases by any other weights, measures, 
scales, beams or balances, he shall be subject to a like penalty, 
to be recovered before a justice of the peace in the name and 
for the use of the person complaining. 




872 COUNTY AFFAIRS ANIMALS. [l)IY. IX. 

7. ANIMALS RULING AT LARGE. (1) 

Section 1. Whoever, being the owner or having the posses- 
sion of any domestic animal of the species of horse, mule, ass, cat- 
tle, sheep, goat or swine, shall suffer the same to run at large, 
except when authorized as hereinafter provided, shall be fined 
not less than three dollars nor more than ten dollars for each 
offense, and for every day he shall allow the same to run at 
large after having been once convicted under this act. The 
herding of any such animal upon uninclosed lands without the 
consent of the owner or person having the control of such 
justices have lands, shall be deemed a running at large, under this act. Jus- 
jurisdiction. t | ceg f .|-} ie p eace shall have jurisdiction of cases arising under 
this act. and animals running at large contrary to the provi- 
sions hereof. 
On petition Sec. 2. On the petition of one hundred, or more, legal voters 
countTcferii °f tne county, being filed with the county clerk, before the 
before' election, tinie of giving notice of the general election in November, in 
any year, in counties not under township organization, or, in 
counties under township organization, before the time of giving 
notice of the general election for town officers, in April, in any 
Notice of ye ar > the county clerk shall cause notice to be given that at 
election. guc | 1 e i ec ^ on a YO t e may be taken in such county for and 
against domestic animals, or any species thereof, to be men- 
tioned in such notice, being allowed to run at large in such 
Notice conform county. Such notice shall conform to the prayer of the peti- 
to petition. ti on ^ and if several such petitions are filed, requiring different 
questions to be submitted at the same election, the notice shall 
conform thereto. 
Form of ballots. Sec. 3. If the petition be for domestic animals running at 
large, then the ballots shall be " For domestic animals running 
at large," and "Against domestic animals running at large." 
If the petition be for any one or more species of domestic ani- 
mals running at large, then the ballots shall be "For 

(naming the animals, as in the petition,) running at large," and 
" Against (naming the animals, as in the petition,) run- 
ning at large." If several petitions are filed requiring the 
submission of different questions at the same election, all the 
questions shall be voted upon on the same ballot, and the bal- 
Baiiot box. lots shall be worded accordingly. The ballots cast in pursu- 
ance of this act shall be deposited in a separate ballot box to 
be provided for that purpose, and canvassed, and returns there- 
of made as in other cases of elections. 

Sec. 4. If a majority of all the votes cast in the county at 
such election shall be for domestic animals, or any species 



DIV. TX.] ANIMALS RUNNING AT LARGE. 373 

thereof, running at large, it shall be lawful in such county for if majority 
domestic animals, or such species thereof, to run at large, pro- ISimaismay 
vided that if, at any such election, the vote in any precinct in ruu at largc - 
counties not under township organization, or any town in . 
counties under township organization, or any incorporated city, separate towns, 
village or town, in any county, shall be against domestic ani- 
mals, or any species thereof, running at large, it shall not be 
lawful for such animals to run at large in such precinct, or 
town, or incorporated city, village or town. (1) 

Sec. 5. In any county wherein animals, or any species separate town 
thereof, are allowed to run at large pursuant to any vote here- °^ preempt may 
tofore had, or which may hereafter be had, on the petition of on animals 
twenty legal voters of any precinct, if such county is not under iarge. 1Ug a 
township organization, or town, if such county is under town- 
ship organization, or any incorporated city, village or town, in 
either case, being filed with the county clerk of such county, a 
vote may be taken in such precinct, or town, or incorporated 
city, village or town, in the manner provided in this act, and 
if a majority of the votes cast shall be against such animals 
running at large, then it shall not be lawful for them to run at 
large in such precinct, or town, or incorporated city, village or 
town. The vote provided for in this section may be taken in 
any such precinct, or town, or incorporated city, village or town, 
whether it shall previously have voted against or in favor of 
such animals running at large therein. 

Sec. 6. This act shall not be so construed as to prohibit the As ;to laws in 
running at large of any domestic animals in any county, pre- act C take? n ia h e S 
cinct or town, or incorporated city, village or town where the' 
same is allowed pursuant to any election held by virtue of any 
law in force at the time this act shall take effect. 

Sec. 7. Where, in any county, town, precinct, village or city, Where vote 
domestic animals shall have been restrained from running at sna11 not take 

-. ii. •n i -n effect until one 

large, and such county, town, precinct, village or city shall year, 
vote to permit such animals to again run at large therein, such 
vote shall not take effect so as to permit such animals to run at 
large within one year after the election : Provided, that no Proviso 
vote to permit such animals to again run at large in any 
county, town or precinct, where the same have been restrained 
by any election after the adoption of this act, shall be taken 
within five years after such restraining. 

(1) Concerning the restraint and regulation of animals running at large, by the 
electors at town meeting, see Div. I., ante, p. 37. 



374 AMEXDATORY ACTS — WATER-COURSES — WOLF SCALPS. [dIV. IX. 



AMENDATORY ACTS. 

REMOVAL OF OBSTRUCTIONS FROM WATER COURSES. 

AX ACT authorizing County Boards to remove driftwood and other obstructions 
from water-courses. Approved May 11, 1877. In force July 1, 1877. 

Sec. 1. The County Boards of the several counties in this 
county board State shall have power to cause the removal of, in such manner 
obstructions, as they may direct, the driftwood and other obstructions from 
the natural water-courses in their respective counties. 



Board allow 

bountj 

scalps. 



BOUNTY OX WOLF SCALPS. 

AX ACT authorizing counties to give a bounty on wolf scalps. Approved March 18, 
1877. In force July 1, 1877. 

Sec. 1. The County Board of any county in this State 
may hereafter allow such bounty on wolf scalps as said board 
M may deem reasonable, said bounty to be paid out of the Treas- 
ury of the county wherein said wolf or wolves were killed, 
upon the certificate of the Clerk of the County Board. 

Sec. 2. When the County Board of any county shall de- 
Bounty entered termine upon the allowing of a bounty on wolf scalps, for any 
one year, they shall enter an order upon their record setting 
forth the amount of such allowance. 

Sec. 3. The person claiming a bounty shall produce the 

scalps to be scalp or scalps, with the ears thereon, and within sixty days 

produce after the same shall have been caught, to the Clerk of the 

County Board wherein such wolf or wolves may have been 

caught and killed, whereupon the Clerk of said Board shall 

administer to said person the following oath or affirmation, to- 

oath. wit : " You do solemnly swear (or affirm, as the case may be), 

that the scalp or scalps here produced by you w T as taken from 

a wolf or wolves killed and first captured by yourself within 

the limits of this county and within the sixty days last past ;" 

which oath or affirmation shall be subscribed by the affiant. 

Sec. 4. It shall be the duty of the several clerks of the 

cierk to record County Boards to keep a record of the amount of certificates 

SScSes issued" issued as a premium for wolf scalps, to w T hom, and at what 

date, and lay the same before the Board at its regular 

annual meeting in each year. 



APPENDIX. 



PARLIAMENTARY LAW; 

OR, RULES OF ORDER FOR DELIBERATIVE ASSEMBLIES, ESPECIALLY USEFUL FOR 

TOWN MEETINGS AND BOARDS OF SUPERVISORS. 



Parliamentary Law consists of rules which, are recognized as governing pro- 
ceedings in deliberative assemblies. It is so called from the rules of order exist- 
ing from long established usage in the Parliament of England. The Legislative 
Assemblies of the several States, and the legislative branch of the general govern- 
ment of the United States, being formed upon the principle of the English Par- 
liament, have adopted the like rules for their government, and by general custom 
in this country, these rules are recognized in all deliberative assemblies. Legis- 
lative assemblies, however, for the purpose of certainty, generally adopt by 
express vote, the rules of parliamentary law, as expounded by some particular 
writer on the subject, qualified as circumstances may demand, by various rules of 
their own. 

.V deliberative assembly is a congregation or convention of persons for the con- 
sideration of matters in which all are concerned. 

Public Meetings. — In many of the States of the Union, counties are divided into 
several districts called towns or townships, the inhabitants thereof becoming a 
body corporate. The law provides for stated meetings of the electors, called town 
meetings, for the consideration of town afFairs. In the absence of any provision 
to the contrary, these assemblies conduct their proceedings according to the 
rules of parliamentary law.* 

Public meetings by voluntary assent are of daily occurrence. These meetings 
are sometimes convened at the instance of committees appointed for that pur- 
pose ; and are frequently convened at the request of citizens who desire such 
meeting, on public notice, either by hand-bill notices posted, or by notice in a 
newspaper. 

Organization of Public Meetings. — The first business at a public meeting is its 
organization. This is effected by choosing a presiding officer to keep order, and 
a secretary to record the proceedings of the meeting, after which it is competent 
for the meeting to choose such other officers as may be deemed necessary. In 
case the meeting is composed of a very large number of persons, the presiding 
officer is called president; if not he is usually styled chairman of the meeting. 

When the people have assembled, and the hour of meeting arrives, the meet- 
ing should be called to order. In case the meeting has been convened at the 
instance of a committee, the chairman or person first named on the committee 
should call the meeting to order. In case it was convened at the instance of 
citizens, the first named on the list should assume this duty, otherwise, the 

♦Boards of supervisors, as constituted by the laws of Illinois, are deliberative assemblies, an<X 
their proceedings are conducted according to general parliamentary rules. 



376 



APPENDIX. 



proper person for this purpose, would be the mayor of the city, or principal 
public officer, or most prominent person present. 

The person calling the meeting to order should take such position in the room 
as to command the attention of the audience, and announce as follows : " Gen- 
tlemen, the hour at which this meeting is to convene having arrived, it is pro- 
posed that we proceed to organize ; I therefore nominate Mr. A. B. as chairman." 
The nomination being seconded, he proceeds ; " Gentlemen, those who are in 
favor of such nomination, will say 'aye '; those opposed will say 'no'. The vote 
being taken, if carried in the affirmative, he will say, "It is carried."' or "it 
agreed to ; Mr. A. B. is chosen chairman of this meeting; will he please come 
forward and take the chair ?" 

If the meeting is deemed one of importance so that the position of chairman 
would be deemed one of considerable honor, it is customary for the presiding 
officer to return thanks to the meeting for the honor conferred ; this he will do 
on taking the chair. 

As every deliberative body should have a secretary, the chairman will say, 
" Gentlemen, the first business in order will be the election of a secretary." If 
no other person moves, the person who called the meeting to order should also 
nominate a secretary ; but any person present may make such nominati 

The secretary being chosen, the further business will be directed by the meet- 
ing. If the meeting is called for some particular purpose, it is proper in selecting 
a chairman to choose some person best acquainted with the object of the meet- 
ing; if this is the case, the chairman should proceed after the election of secre- 
tary, and state the object of the meeting. If not, he should say, " The chair is 
not fully advised as to the object of this meeting. It will be proper that the 
object of the meeting be stated by some person to whom it is best known." It 
will be generally understood who this person is. and a motion may be made call- 
ing on him for that purpose, or he may be called out by several voices. 

It will be proper for the meeting to choose one or more vice-presidents, and 
one or more assistant secretaries. This is done where the meeting is large — gen- 
erally as a means of manifesting the importance of the occasion. They will also 
choo'se such committees as may be deemed necessary. 

When an assembly is composed of delegates chosen by and representing 
others, the organization is, in the first instance, considered temporary, upon 
which measures are taken to ascertain who are members ; this is usually done 
by the appointment of a committee to examine the credentials of those claiming 
to be members, and to report accordingly. 

Until this is done there is a presumption that all present who assume to take 
part in the assembly, are entitled to do so. as it is supposed that no gentleman 
would be guilty of imposition in this respect. At the time of appointing the 
committee on credentials, it is customary also to appoint a committee to report 
the names of persons for permanent officers of the assembly or convention. 

After the report of the committee on credentials is adopted, the assembly, on 
motion of some member, proceeds to the election of permanent officers. If the 
Dames of candidates have been recommended by a committee, the adoption of 
their report is regarded as making choice of the persons they have recommended. 
In the case of an assembly composed of delegates, unless it is an important occa- 
sion, it is not customary for the temporary chairman to return thanks to the 
convention, or to allude to the object of the meeting; he simply acts as modera- 
tor for the time being, for the purpose of organization. 

It is proper that the permanent chairman, or president, on assuming his 
duties, should express his thanks for the honor conferred upon him, and state in 
general terms the object of convening the assembly. 

In case the assembly or convention of delegates is small, it is customary to 
consider the temporary organization as permanent from the beginning. 

When the organization of the meeting is completed by the election of officers, 
the chairman should announce, " The meeting is now fully organized, and ready 
to proceed to business." If no motion is made or business presented, it is proper 



PARLIAMENTARY LAW. 377 



for the chairman to Bay, "What is iho pleasure of the meeting?" And at any 
time when there ia no business before the meeting, and there is no indication of 
presenting anything, the chairman should announce, "Gentlemen, there is no 
question before the meeting ; what is your further pleasure ?" 

Manner qf presenting business. — Every member of a deliberative body, in the 
absence of express rule to the contrary, has the right to present propositions for 
the action of the assembly. This is by a simple motion or by formal resolution. 
But where t lie object of the meeting is of a general nature, or where the subject 
does not seem to have been duly matured by any one present, it is customary to 
appoint a committee to prepare and report resolutions expressive of the sense of 
the meeting. When a member desires to present a proposition for the action of 
the assembly which is of importance, it should properly be reduced to writing; 
such propositions are called resolutions, and commence thus: _ "Resolved, That." 
But a matter of less importance may be by a mere motion, which need not be in 
writing unless for purpose of certainty in conveying the ideas of the mover. 



Motions, and manner of proceeding. — A motion is simply a proposition of a 
member, as his individual sentiments. If the proposition offered prevails, it is 
then adopted as the conclusion or sense of the assembly. 

But the proposition by a single member is not considered sufficient to claim 
attention from the assembly ; it is therefore required that it shall be approved or 
seconded by one other member. This being done, the mover is entitled to have 
it put to the assembly. In general practice, however, all motions are presumed 
to be seconded, unless the point is made and found to be otherwise ; in which 
case the presiding officer could not properly take notice of the motion. 

In general no proposition or question can be acted upon except on motion of 
a member. The manner of proceeding is for the member to rise in his place, 
and say, " Mr. Chairman." < Before he can proceed it is expected that he will 
have the permission, or as it is termed, " recognition of the chair." The chair- 
man therefore responds : " The gentleman from," naming the district from 
which he is a delegate, or, "the gentleman on my right," or similar designa- 
tions. The rule in deliberative assemblies being that no member shalt be 
addressed or spoken of by his name where it can be avoided. The person offer- 
ing the motion, being recognized by the chair, proceeds, " I move, sir, that," 
stating his motion. The member desiring to second the motion should rise and 
say, " I second the motion." Before any remarks upon the motion or proposition 
are in order, it must be stated by the chair. The chairman should say, " Gentle- 
men, it is moved that" (stating the substance of the motion). It is sometimes 
the practice for the chairman to say, " Gentlemen, you have heard the motion," 
and then proceed to put the question. But this is improper ; a motion is not the 
property of the assembly, or, in other words, not a subject before them, until it is 
stated by the chairman. 

When a motion is made and seconded, it becomes the property of the assem- 
bly, and cannot be withdrawn or modified by the mover except by leave of the 
assembly, on a motion made for that purpose. 

After the chairman has stated a motion, which he may do without rising, if 
no member interposes, he should proceed promptly to put the question to the 
assembly ; this he does by rising, when he will say, " Gentlemen, those in favor 
of the motion will say aye" — " those opposed will say no." If it is decided in the 
affirmative, he will say, " The motion has prevailed," or, "It is carried." If it is 
decided in the negative, he will say, "The motion is lost," or, "It is decided in 
the negative." 

After the vote has been declared by the presiding officer, it becomes final. 
Sometimes, when the vote is nearly equal, it is difficult to determine which has 
prevailed. In such case the presiding officer should not hastily announce the 
vote. He should say, " The ayes seem to have it," or, " The noes seem to have it," 
as the vote may appear. If no member interposes, he may then proceed and 
declare the vote as it seems to him to be. 



378 APPENDIX. 



But if any member doubts the vote as the chairman states that it seems to be 
he may rise and call for a division of the house. This may be done, as the call 
indicates, by dividing the members of the assembly — by having those who vote 
in the affirmative stand on one side of the room, and those in the negative stand 
on the opposite side ; or by the "up-lifted hand "—the latter is the most usual— 
or simply by rising. In either case the chairman will direct the secretary to 
count the votes on each side, and report to him the result. The most usual and 
satisfactory course is by rising. 

When a member calls for a division of the house, in the absence of any express 
rule made by the assembly on the subject, the presiding officer should proceed 
thus : " A division is called for ; all those in favor of the motion will rise in their 
place, and stand until counted." When those in the affirmative are counted, 
and the number is reported to the chairman, he will announce the number, and 
say, "All those opposed to the motion will in like manner rise and stand until 
counted," which being done, the chairman announces the number, and declares 
the motion carried or lost according to the fact. It is perhaps the duty of the 
chairmanto count the vote, but it is competent for him to direct the secretary to 
do so. 

In case any member desires it, he may, at any time before the vote is declared 
by the chairman, call for the appointment of tellers to count and report the result 
of the vote, instead of leaving it to the chairman. This is done by the chairman 
on request of any member. It is customary to appoint one person from each 
side, or each party in the assembly. When a division is desired, it must be 
called for before the result has been finally declared by the chairman. After he 
has declared the vote, it is final, and a division cannot be called for. 



Motions in General. — When a motion is made which the members are in- 
clined to meet by a direct vote, on the merits, it is put to the assembly, either at 
once or after debate, and disposed of. But as propositions may strike different 
minds in different forms, it often occurs that the assembly, on motion of some 
member, will dispose of the question in some other manner ; for this purpose 
there is a class of motions resorted to, called subsidiary motions, which may be 
entertained while the original or principal motion is pending, thus : 

1. The assembly may desire to suppress the proposition, either for a time or 
altogether. The proper subsidiary motions for this purpose are, the previous ques- 
tion and indefinite postponement. 

2. The assembly may be willing to consider the proposition, but not at that 
time. The usual motions in such case are, postponement to some future time, or to 
lie on the table. 

3. The form in which the proposition is submitted may be considered defective 
in some particular, a correction of which may require more deliberate consider- 
ation than the assembly can conveniently bestow upon it. In such case the 
proper motion is to refer the proposition to a committee. 

4. The proposition of itself may be satisfactory, if changed or qualified in some 
particular. In this case the proper motion is to amend. 

The previous question. — The practice under this motion has not been uniform. 
In legislative assemblies it is generally regulated by rules prescribed ; the usual 
course, however, in the absence of express rules, is this : When a member desires 
a vote to be taken on a proposition without further debate or delay, he moves 
the previous question, this being seconded, the presiding officer says, " The pre- 
vious question is moved. Shall the main question be now put? Those in favor 
will say ' ave,'— those opposed will say ' no.' " If carried in the affirmative, he 
will say, "The main question is ordered." In this case the assembly must come 
to a direct vote on the main question, without debate, and no motion can be en- 
tertained to dispose of the question in any other manner j the main question is the 



PARLIAMENTARY LAW. 379 



original proposition, with pending amendments if any, each of which is to be 
disposed of in its proper order.* 

Indefinite postponement. — This motion is decided without debate. If in the 
affirmative it removes the question from before the assembly as effectually as if 

it had never been pending-. A motion to postpone to a day beyond the sitting of 
the assembly is of the same effect as indefinite postponement. 

Motion to postpone. — When it is desired to consider a proposition at some future 
day, the proper motion is to postpone or lay on the table. In either case the subject 
ma)- be taken up subsequently by a vote of the assembly. 

Motion to commit. — Wlien it is desired to render a proposition more perfect be- 
fore consideration, it is usually done by referring it to a committee. If there is 
a steading committee on that subject, the motion should be to refer to that com- 
mittee. If not, then to a select committee. A motion to refer to a select com- 
mittee, and a standing committee, may be made and pending at the same time ; 
in which case, the latter motion takes precedence, and should be first put to the 
question. A part or the whole of a subject may be referred; or portions may be 
referred to several different committees. 



Motions to Amend. — Amending a proposition is either by adding words, or 
taking words from it, or by transposition of words. This is accomplished under 
different modes of proceeding. Under this head may be classed the following : 

1. Filling blanks. — It often happens that propositions are introduced, leaving 
blanks to be filled by the assembly, either w r ith times and numbers, or with pro- 
visions analogous to those of the proposition itself. In the latter case, blanks 
are filled in the same way that other amendments are made by the insertion of 
words. In the former, propositions to fill blanks are not considered as amend- 
ments to the question, but as original motions, to be made and decided before 
the principal question. 

In case of blanks to be filled with time and number, motions may be made for 
that purpose, and the question taken on each by itself. Several motions for this 
purpose may be made and pending, before any of them are put to the question. 
The usual rule is to take the question, first, on the highest number, the largest sum, 
and the longest time. 

2. Striking out. — If an amendment is proposed by striking out a paragraph or 
certain words, and it is rejected, it cannot be again moved to strike out the same 
words, nor a part of them ; but it may be moved to strike out the same words 
w r ith others, or to strike out a part of the same words with others, provided it 
becomes thereby a different proposition. 

3. Amendment by inserting. — If an amendment is proposed- by inserting or 
adding a paragraph or words, and it is rejected, it cannot be again moved to 
insert the same words, or a part of them ; but it may be moved to insert the 
same with others, or a part of the same words with others, if the coherence 
really make them different propositions. 

4. Striking out and inserting. — This combination of propositions may be divided 
by a vote of the assembly. When the proposition is divided, the question is 
first to be taken on striking out ; if that prevails, then on inserting ; if the 
former is decided in the negative, the latter falls of course. 

* If the motion for the previous question is lost, or decided in the negative, the general rule is 
stattd lo be, that the main question is taken out of the assembly for the day, so that there is then 
nothing before it to postpone, commit or amend. Cushing's Manual, g 175. But in Illinois the 
practice is that the main question is still pending as if no vote had been taken. 

25 



380 APPENDIX. 



5. Division of a proposition. — "Where a proposition is composed of two or more 
parts, which are susceptible of division into several questions, it is a compendious 
mode of amendment to divide the motion, if deemed advisable, into separate 
questions, to be separately voted upon. This may be done by order of the 
assembly, on motion, as in other cases. 

The question as divided becomes a series of independent propositions. Assem- 
blies sometimes provide by express rule for the division of a question on demand 
of a member. 

6. Amendment to an amendment. — Custom or usage has established a rule 
whereby a proposition may be entertained to amend an amendment, but there 
can be no amendment of an amendment to an amendment. 

Of the Order and Succession of Questions. — It is a general rule that where a 
proposition is pending before a deliberative assembly no other can be entertained 
until that is disposed of, unless it be either : first, a privileged question ; secondly, 
an incidental question ; or, thirdly a subsidiary question or motion. 

1. Privileged questions. — Questions of this nature are: 1. -Motions to adjourn. 
2. Motions or questions relating to the rights and privileges of the assembly, or 
of its members individually. 3. Motions for the orders of the day. 

A motion to adjourn takes the place of all other questions whatever. It is not 
debatable, and ordinarily not susceptible of amendment. 

A motion to adjourn to a time fixed can be amended, by offering some other 
time, and is debatable. 

Questions of privilege come next in order, and take precedence of all other 
motions except that of adjournment. They are such as concern the rights and 
privileges of the assembly, or of its individual members. 

Orders of the day come thirdly in succession, under the head of privileged ques- 
tions. When the consideration of a subject has been assigned for a particular 
day, by an order of the assembly, the matter so assigned is called the order of 
the day for that day. 

2. Incidental questions. — These are such as arise out of other questions, conse- 
quently are to be decided before those which give rise to them. Of this nature 
are : 1. Questions of order ; 2. Motions for the reading of papers, etc. ; 3. Leave 
to withdraw a motion ; 4. Suspension of a rule ; 5. Amendment of an amendment. 

Questions of order are those questions raised by any member as to a breach of 
any rule occurring. It is the privilege of any member to raise questions of order 
in such cases. 

Beading of papers brought before a deliberative assembly may be called for by 
any member who desires the reading. 

Withdrawal of motions is allowed on the part of the mover, by leave of the 
assembly, which is to be obtained by a vote on motion as in other cases. 

Suspension of a rule of the assembly may be granted by a vote thereof. This is 
usually obtained at the instance of a member to consider a proposition which 
would otherwise not be in order. 

Amendment of an amendment is allowable, as we have already seen ; the amend- 
ment to the amendment must be first put. 

3. Subsidiary questions. — These, as before remarked, are those which relate to a 
principal motion. Subsidiary motions in common use are : to lie on the table ; 
the previous question ; postponement, either indefinitely or to a day certain ; 
commitment and amendment. 

To lie on the table, is a motion usually resorted to in common practice when the 
assembly desire to put a proposition aside without giving any expresison upon 
its merits. It is not debatable nor susceptible of amendment. It takes preced- 
ence of and supersedes all other subsidiary motions. If decided in the aflirma- 



PARLIAMENTARY LAW. 381 



tive, all motions or propositions connected with the principal question, are 
removed with it from before the assembly, until taken up by a vote thereof. 

The previous question stands in equal degree with all other subsidiary motions, 
except the motion to lie on the table. 

The motion to postpone is either indefinite, or to a time certain ; and in both these 
forms, may be amended ;— in the former by fixing a time certain ; in the latter by 
substituting one time for another. The latter case is treated like filling blanks. 

totion to commit, or recommit, may be amended by substitution of one kind 
of committee for another, or by enlarging or diminishing the number of the 
committee as proposed, or by instructions to the committee. It stands in the 
same degree with the previous question and postponement — but it takes preced- 
ence of a motion to amend. 

A motion to amend stands in the same degree only with the previous question 
and indefinite postponement, and neither, if first moved, is superseded by 
the other. But it is liable to be superseded by a motion to postpone to a day cer- 
tain. It may also be superseded by a motion to commit. 

The foUoiaing example is given to'illustrate the successive order of questions : 
Suppose first a principal question is proposed, second, a motion is made to amend 
the principal question, third, a motion to commit, fourth a question of order arises 
in the debate, which gives occasion to, fifth, a question of privilege, and sixth, 
a subsidiary motion, as to lie on the table. All these questions may be pending 
e same time, and take rank in the order named. The regular course of 
proceeding requires tho motion to lie on the table to be first put. If this is 
negatived, the question of privilege is then settled ; after that comes the question 
of order, then the question of commitment ; if that is negatived, the question of 
amendment is taken ; and lastly, the main question. 

Of reconsideration. — A deliberative assembly may reconsider a vote already 
parsed, whether affirmatively or negatively. For this purpose a motion is made, 
as in other cases, that such a vote be reconsidered ; if it prevails, the matter 
stands before the assembly in precisely the same state and condition as if the 
vote reconsidered had never been passed. In the absence of any express rule 
of the a^?sembly, a motion to reconsider is made in the same manner as any 
other motion. 

Of committees. — The business of deliberative assemblies is facilitated by aid of 
committees ; they are of three kinds, select committees, standing committees and com- 
mittee of the vhole. 

Select committees are those appointed to consider a particular subject. 

nding committees are those who are appointed to continue during the whole 
term of the assembly, to consider all matters of a certain character named during 
the time. 

A committee of the ichole is a committee comprising all the members of the 
assembly to consider any subject referred to them. 

^ Select and standing committees, in the absence of any express rule or vote of 
the assembly, are appointed by the presiding officer. When a motion is made 
for tho appointment of a committee, the motion usually includes the number of 
which it is to consist. If no vote is taken as to the manner of appointment, the 
presiding officer should proceed to appoint. It will be unnecessary for him to 
inquire of the assembly as to how they will have the appointment made ; the 
fact that they have given no expression on the subject implies that the appoint- 
ment shall be made by the chair. 

The person first named on a committee is considered the chairman ; but in the 
absence of any rule to the contrary, the committee may make choice of some 
other person as chairman, if they desire to do so. 

When a committee have considered a proposition, they present the result to 
the assembly, which is called their report. It is usually in writing, and is 
announced to the assembly by the chairman, or some member of the committee 
selected for that purpose* ;vho rising in his place, says, " Mr President " [or Mr. 



382 APPENDIX. 



Chairman, as the case may be], "The committee to whom was referred the subject 
" of [stating the matter referred], have had the same under .consideration, and have 
"instructed me to report that " [here follows the report]. 

After the report is made, the proper motion is, on the reception of the report ; 
but in practice the report is received without such motion, unless objection is 
made, in which case a formal vote is necessary. After the report is received, the 
committee are discharged without any action of the assembly. 

The report thereupon becomes the property of the assembly, and the question 
recurs on its adoption. The presiding officer will proceed and so state the ques- 
tion, without any formal motion being made. _ 

After a report is adopted, the recommendations of the committee become the 
sense of the assembly. 

Conclusion. — The foregoing is a brief summary of the general principles of 
parliamentary law for the regulation of proceedings in deliberative assemblies. 
Limited space does not admit of an extended treatise on the subject ; but suf- 
ficient has doubtless been given for ordinary purposes. 

In conducting proceedings in deliberative assemblies, much depends upon the 
presiding officer. According to the popular" idea of such a functionary, he 
becomes little more than a graven image, or fixed statue, when in fact he should 
be tho most active man in the assembly. He should have his attention in all 
directions as much as possible, at the same time, and be quick to recognize any 
member who rises and addresses him. As soon as a motion is offered he should 
proceed promptly, without hesitation or delay, and state it, in a full and clear 
voice. If no one rises to speak to it, he should proceed just as promptly to put 
the motion. It is no part of his duty to invite debate. 

An example of promptness and diligence on the part of the presiding officer 
gives spirit to the assembly, and business is conducted with more dispatch and 
greater satisfaction. 



INDEX. 



Page. 

ANIMALS. 

Restraint from running at large by" 

towns 49 

Impounding 50 

Breaking into inclosures 186 

Owner liable, may be distrained 186 

Running at large— penalty 372 

Jurisdiction of justices 372 

Election to allow running at large 372 

Towns may prohibit 49-373 

When vote" takes effect 373 

APPEALS IN ROAD CASES. 

Notice and petition in writing 148 

Grounds of appeal stated 149 

Trial of appeal by Supervisors 149 

Must give three days notice 149 

Powers of supervisors 150 

Report of decision— final 151 

Appeal costs to be paid 153 

Bond for costs to be filed 155 

Majority decision final 155 

Appeal— road, town or county line 155 

To whom appealed 156 

Town and county line roads— what 

deemed Hieh...._ 156 

State line roads 156 

APPENDIX 375-382 

ASSESS 

Power of in division of town property 3S-39 
To meet and apportion personal estate 

belonging to towns divided 39, 40 

Meeting, how called 40 

To be one of judges of election in town 60 

When elected , 40 

Term of office 62 

Refusal to serve, penalty 75 

A member of board of health 87 

Compensation of. 88-235 

Are fence viewers ex-ufficio 177 

Appointment 231 

Duty in assessing property 232 

Pay of 235 

To return assessment to countv clerk 234 

BOARD OF EQUALIZATION. See State 
Board or Equalization. 

BOARD OF HEALTH. 

Provisions concerning 87,88 

BOARD OF SUPERVISORS. 

Special provisions 349-351 

Annual and regular meetings of 319 

Special meetings, when held 349 

Lay before board certificates of elections 350 

Majority constitute quorum 850 

Set with open doors , 350 

Chairman, power to administer oaths.... 350 
Power to appropriate funds in aid of 

bridges 850 

Change boundaries of towns 350 

To create new towns 850 

To change name of town 850 

BOARD OF TOWN AUDITORS 84-87 



Page. 

BRIDGES. See Roads and Bridges. 

Town and county line bridges— how 

built and repaired 157 

Contract between commissioners 157 

Expenses borne equally 157 

Neglect to carry out contract by commis- 
sioners 157 

Expense recoverable from refusing 

party 158 

Judgment against commissioners to be a 
town charge, unless when neglect was 

willful 158 

When county to aid in building bridge.. 159 
Petition to borrow money to aid . in 

building bridge 159 

Petition for special town meeting to 
vote on question to borrow money to 

build bridge 160 

BY-LAWS. 

Published— when in force 55 

COLLECTOR. 

One of judges of election in town 60 

When elected 61 

Term of office 62 

Qualification— bond 74, 248 

To collect taxes ,... 249 

May levy and sell property 249 

Pay over tax to proper officers 249 

Sheriff ez-officio collector, when 250 

Vacancy in office— how filled 250 

Treasurer ex-officio collector.....' 251 

May levy and collect taxes after final 

settlement 257 

Return tax books before March 10th 259 

Statement of delinquent tax 259 

Attend sale of delinquent land 270 

Pay over to successor redempiion money 278 

Make final settlement, when 279 

Sell forfeited property.. 279 

COMMISSIONERS. 

To divide county 31 

Report of. 32 

COMMISSIONERS OF HIGHWAYS. 

Elected at first election, term decided by 

lot 34 

Term of office when town is divided 38 

Term of office continues where two 

towns are united 43 

When payment for bridges only on joint 

order of 47 

Election of. at annual town meeting 62 

Oath of office filed with town clerk 73 

Neglect to, a refusal to serve 73 

Penalty for refusal to serve 75 

Intrusion into office 75 

Term of office 75 

Duty to deliver up books and papers 75 

To pay over money 75 

General duties of 101-173 

Have care of highways and bridges 101 

Keep roads and bridges in repair 102-108 



384 



INDEX. 



Page. 

Lay out and establish roads 104 

Cause roads to be recorded 104, 105 

Keep possession of tools * 108 

To purchase implements 108 

To keep guide boards 108 

Prevent thistles and weeds from grow- 
ing on highways 108 

Construct public wells, with water- 
trough 108 

Costs paid from road and bridge fund... 109 

Make list for poll tax 109 

Give notice to persons to pay tax 110 

Render an account to town auditors 110 

To sue for poll tax Ill, 112 

May contract for labor to pay poll tax... 113 

Election and term of office 113 

Shall choose treasurer 113 

Treasurer hold and pay moneys or order 113 

Treasurer shall give-bond 114 

Approval of bond 114 

Choose one of their number general 

overseer of highways 114 

Overseer to have general supervision of 

roads and bridges 115 

Compensation of'treasurer 115 

May remove obstructions 116 

Duties to prosecute for fines and penal- 
ties 119 

Put up notices against fast driving 121 

May enter on land to construct drain 122 

May apply to any justice to have dam- 
ages assessed for entering on land 122 

Mav emplov road labor and monev, 

when 122 

May alter or widen roads 123 

Fix time of meeting to examine road 126 

Shall give notice of place of meeting 127 

May adjourn meeting 128 

Refusal to grant petition to be filed with 

town clerk 128 

Duties in cases of vacating road 129 

Copy of order and petition filed with 

town clerk 129 

For new road, shall cau.-e a survey 129 

Shall ascertain damages 130 

Release of damages to^be filed with town 

clerk 131 

May ask for jury to assess damages 133 

Shall notify land-owner whose damages 

are to beasse sed 134 

May revoke proceedings had on petition 139 
When proceedings not revoked when 
damages are released, cause a sur- 
vey 141, 142 

Contracts made with, concerning roads 144 

Lay out private roads on petition 145 

May pay owner when road is used by 

public ~ 146 

Roads on town or county lines 147 

Duty of commissioners of several towns 147 

Allot to each town its part of road 147 

Shall divide expenses of same 148 

Appeal when commissioners of two 

towns disagree 155 

Enter in contracts to keep in repair 

bridges of adjoining towns 157 

Duties when necessary to build bridge.. 159 

To re-survey road when petitioned 161 

To make contracts for bridges 161 

May let private contract, amount 525.-.. 162 

Contracts to be accepted before paid 163 

Sixty days' notice to remove fences 164 

When may remove fences 164 

To ascertain tax for roads 167 

To ascertain tax for bridges, for pur- 
chasing materials and tools 168 

Shall furnish clerk county court list of 

tax-payers 170 

Neglect of duty, penalty 170 



Page. 

Duty to record plat of highway 171 

To record order vacating road 171 

CONVEYANCES. 

Bv towns, now made— effect 55 

COUNTY AFFAIRS. 

Boundaries and jurisdiction of coun- 
ties 337-374 

Alteration of county lines 337-339 

New counties 33.;-342 

Powers and duties of Counties and 

county boards 342-348 

Provisions applicable to board cf 
county commissioners in counties 

not under township organization 348 

Board of supervisors in counties un- 
der township organization 349-351 

Board of county commissioners Cook 

county 351 

Timber— planting and growing 352 

Tees and salaries of officers 353 

Removal of countv seats 354-361 

County clerks 362-364 

County treasurers 464-366 

States'attorneys 367, 368 

"Weights and measures 369-371 

Animals running at large 372-374 

Removal of obstructions from water- 
courses 374 

Bountv on wolf, scalps 374 

COUNTY AGENT. 

When in charge of poor-house 200b 

Shall report to county board 200b 

COUNTY CLERK. 

Make and record abstract of returns of 
election adopting township organiza- 
tion 30 

Transmit to auditor abstract of report of 

commissioners 32 

Prepare notices of first town election 32 

Make certificate of amount of levy 169 

Deliver assessment books to town* clerk 235 

Duty, on return of assessment 236 

Report assessment to auditor 238 

Make out collector's books 245 

To extend taxes 246 

Send statement of assessment to auditor 247 

Deliver to collector books for taxes 249 

Attend sale of delinquent lands 269 

Make and deliver certificate on tax sale 271 

Transmit to auditor copy of sale lists 272 

To execute tax deed _76 

Report to auditor, amount due State for 

redemption 27S 

To provide poll books 305 

Make certificate of election 315 

General duties of. 362-364 

Commissioned by the governor 362 

Take oath of office, give bond 362 

Shall be clerk of board of county com- 
missioners 352-363 

Keeper of seal of county a 362 

Office to be at court house 362 

May appoint deputies 362 

Responsible for acts of deputies 363 

Have care and custody of records 363 

' Keep records proceedings county board 363 
Keep record of order on county treas- 
urer 363 

Present orders to county treasurer to 

sign 363 

Keep record of official bonds filed 363 

Keep indexes to all records 363 

To give copy of records 363 

To be sealer of weights and measures 370 

Neglect to comply with law concerning 

weights aiid measures— penalty 371 

COUNTY" BOARD. 

Adoption of township organization to be 
submitted by board 30 



INDEX. 



385 



Page. 
To appoint commissioners to divide 

county 81 

Have power to change name of town.... 32 

Give notice of holding first town elec- 
tion 33 

When towns refuse to organise order 

another election 34 

In discontinuing township organization 35,86 
Power of. to change boundaries of town 36 

May unite towns 42 

Powers relating to paupers 1 ( j8 

When may appoint overseer of poor 200 

To provide tuition for i auper children 200b 

When may appoint county assessor 'S.'A 

To equalize assessments... 236 

To hear applications for exemption 2:-!7 

When may order new assessment 238 

To determine amount of taxes 245 

Whet) may institute suit 279 

Members when not elig.ble as bonds- 
men 2S5 

Definition of. 295 

Sh;dl provide ballot boxes when 305 

General powers and duties 842-348 

In counties not under township organi- 
zation 348, 319 

In counties under township organiza- 
tion , 349-351 

In Cook county 351 

To fill vacancy in office county clerk 8(33 

COUNIYSEATS. 

val of, mode of proceeding 354-361 

ELECTIONS. 

First town election, how conducted 33 

New. when town divided 37 

Of directors of insurance companies 202 

Law relating to 299-335 

Electors of president and vice-president 299 
Time of holding elections for certain of- 

ticers 3 

Election precincts 303 

Judges and elerks of election 30;-! 

Oath of judges and clerks 304 

Ballot-boxes a"nd poll-books 305 

Constables to attend, preserve order 305 

Notice of election 306 

Conducting elections, returns 307 

When polls opened, proclamation 307 

Poll-list 307 

Manner of voting 308 

Canvassing votes 309 

Ballots preserved 310 

Challenges 311 

Qualification of voters 311 

Challenging vote, affidavit, witness 313 

Canvassing vote, certificate of election.. 314 

Tie vote, decided by lot 316 

Compensation of judges and clerks o!.... 316 

Sale of liquors on election day 317 

Penalty for lalse swearing .* 317 

Bribery 318 

Betting on flection 318 

Misconduct of judges of 319 

Failure to deliver poll-book 320 

Fraud in canvassing vote 321 

Mutilating, etc., poll-book 321 

Contesting elections 321 

Manner of contesting 322 

Testimony, how taken 323 

Contested, how tried 324,325 

.ations and vacancies 325 

When vacancy will occur 325 

Vacancies, how filled 326 

To what elections this act applies 327 

Constitutional provision as to votes 328 

Registry of voters 329 

List of voters, how made 329-331 

No vote received if name not on list, ex- 
cept 531 



Page. 

Fraudulent registry, punishment 883 

Election law published, etc., by State.... 3;;i 
\vs. 

What deemed 89 

Who may take up 89 

Advertise before using 

Notice of taking up posted w 

Desription of, in notice 90 

Copy of notice to tow n-clerk 9 i 

FENCES. 

Who are fence-viewers 177 

Appointment of viewers 177 

What is a lawful fence 177 

Moving partition fence, notice in writ- 
ing 177 

When owner of enclosure shall pay ad- 
joining owner 178 

Value and proportion determined by 

fence-viewers 179 

Neglect to repair division fences 179 

Disputes between own rs settled by 

fence-viewers 180 

Fence-viewers, how chosen, notice 180 

Fence-viewers to examine, decision to 

be in writing 181 

Decisions to be filed with town-clerk 182 

Neglect to repair fence, notice in writ- 
ing 182 

Party injured may repair, damages 183 

Division fence, when- destroyed, who 

shall repair 184 

May remove d vision fences after one 

year's notice 184 

Fences removed without notice, dam- 
ages 185 

Fences made by mistake may be re- 
moved 185 

Material to be paid lor 185 

Compensation of fence-viewers 186 

Animals breaking into inclosures 186 

Owner liable for damages, may be de- 
strained 186 

Railroad to make lences both sides of 

road 187 

Tearing down fence, party liable to pen- 
alty 187 

Neglect of railroad to repair fences 189 

Refusal to build or repa.r, owner mav.... 190 
FENCING RAILROADS. See RAILROAD* 
Railroad to make fences on both sides 

of road 187 

Except at public roads and in cities 187 

Cattle-guards, where necessary 187 

Railroads, when liable for damages 187 

Tearing down fence, party liable to pen- 
alty 188 

Neglect of railroad to repair fence 189 

Notice to railroad, service of 189 

Refusal to build or repair fence, owner 

or occupant may do so 190 

Builder entitled to double value for 

same 190 

FORMS. 
Township Organization. 
Petition to county board for township 

organization .". 30 

Report of commissioners to divide 

county into towns 32 

Notice by county clerk for first town 

election 33 

Determination of commissioners of high- 
ways for term of office 31 

Petition for alteration of boundaries of 

towns 37 

Petition for dividing towns 37 

Notice for new town, dividing town or 

changing boundaries 37." 

Agreement of supervisors and asses- 
sors in division of tow us 38} 



386 



INDEX. 



Page. 
Deed of conveyance by supervisors and 

assessors where town is divided 39 

Proceedings of supervisors and asses- 
sors in apportioning property in di- 
vision of towns 40 

Notice by supervisor to meet and ap- 
portion property in division or alter- 
ation of town....*. 41 

Submission of question of division of 

property to county board 42 

Petition for uniting" two towns 43 

Joint order of comrniss oners of high- 
ways 48 

By-laws concerning cattle running at 

"jarge 51 

Notice by justice to owner of animals 

impouh led 52 

Same where owner is not known 52 

Docket entry on hearing complaint 
against owner of impounded ani- 
mals 53 

Poundmaster's notice of sale 53 

Deed of conveyance by town 56 

Notice for annual town meeting 58 

Request by electors for change of place 

' place of holding town meetings 59 

Notice of requestincluded in notice of 

town meeting 59 

Statement to be filed in the office of 

town clerk for special town meeting.. 60 
Notice for holding special town meet- 
ing 60 

Oath of moderator of town meeting 64 

Poll list kept at town meeting 66 

Canvass of votes at town election 66 

Statement of result of canvass entered 

in minutes of meeting 67 

Notice by town clerk of drawing lots 
in case' of tie vote between candi- 
dates 67 

Memorandum of decision of the vote 

between candidates 67 

Notice by town clerk to a person e ect- 

ed to town office 68 

Minutes of proceedings of town meet- 
ing 70 

Oath to be taken by town officer 73 

Supervisor's certificate of election 73 

Notice of acceptance of overseer of 

highways or poundmaster 74 

Oath of "town officers on g ing out of 

office 75 

Warrant of appointment to fill vacancy 76 
Order of special election for justice of 

the peace or constable 77 

Notice of same 78 

Not : ce by town clerk to one appointed 

to fill vacancy 78 

Resignation of town officer 78 

Supervisor's bond 79 

Clerk's approval to be endorsed on su- 

supervisor's bond 80 

Town clerk's order on supervisor 80 

Receipt of payment endorsed on town 

order 81 

Keeping supervisor's book 81 

Certificate of justices' and town clerk 
in supervisor's book upon examina- 
tion of accounts 81 

Entry of filing paper by town clerk 82 

Certificate of town clerk to accompany 
book of entries of votes for raising 

money recorded in town book 83 

Certificate of town clerk to copies of 

papers and records 83 

Bill against town and affidavit of cor- 
rectness 85 

Certificate of auditors allowing claims 
against a town 85 



Page. 
Town clerk's certificate of aggregate 

amount of town accounts audited 86 

Notice of taking up estrav by house- 
holder ." 90 

Town clerk's entry in estrav book, 

noting delivery of estray notice 90 

Appeal from decision of commissioner 

of Canada thistles 92 

Report of commissioner of Canada this- 
tles 93 

Supervisor's statement of financial af- 

affairs of town 95 

Fences. 
Agreement to divide and maintain a 

division fence 177 

Notice of adjoining owner of removal 

ofhis share offence 178 

Notice to parties for examination of 

fence 179 

Direction to repair or re-build fence 179 

Notice to choose fence viewers to set- 
tle dispute 181 

Submission of dispute to two fence view- 
ers 181 

Decision of fence viewers in relation to 

dispute 182 

Decision where two cannot agree and 

another is selected 182 

Notice to adjoining owner to contrib- 
ute towards division fene 183 

Appraisal of damages by fence viewers 

by reason of neglect 183 

Notice to person to make or repair 

fence injured 184 

Subpoena for witness by fence viewers 185 
Notice to owners of animals found tres- 
passing, to be posted 1S6 

Notice to railroad eompany to build or 

repair fence 189 

Paupebs. 

Notice to remove non-resident pauper 194 

Contract lor support of poor person 195 

Api roval of contract by town auditors 196 

Bond of contractor .* 196 

Township Insurance Companies. 
Declaiation of intention to form com- 
pany 201 

Charter for township Mutual Insurance 

ance company 202 

Revenue. 

Affidavit of assessor verifying books 235 

Bond of town and district collector 248 

Oath of town and district collector 248 

Bond of county collector 251 

Oath of same 252 

Affidavit of collector verifving delin- 
quent list •* 265 

Order for sale of property against which 

judgment is given 267 

Tax deed 276 

Elections 

( 'ath of judges and clerks of election 305 

Notice of election 306 

Entry of result of canvass 310 

Affidavit of voter when challenged 313 

Oath of witness for voter 313 

County Affairs. 

Oath of county commissioner 348 

Oath of person challenged at county 

seat election 359 

Oath, of witness for voter 359 

Oathof countv clerk 362 

Bond of county cle.k 362 

Oathof county treasurer 264 

Bond of countv treasurer 634 

INSURANCE See " Toavnship Insurance 

Companies." 
JUDGE OF ELECTION 

Appointment 303 



INDEX. 



387 



Paok. 

Oath 8W 

Compensation 316 

Misconduct o\' 818 

JUSTICE OF THE PEACE, 

When hold over in township organisa- 

88 

Election of 62 

Accept resignation of town officers 78 

With town clerk to certify toSupervis- 

ccounts 81 

Jurisdiction tinder road law 101 

Jurisdiction in suits for road tax 112 

Jurisdiction for fines and penalties un- 
der road law 118, 119 

Jurisdiction in road dam- 

:. 122-133, 131 

To notify owners of proceedings 135 

Post notices when owners are non-resi- 
dents 135 

Duties in trials of appeals in road cases.. 149 
Issue summons in road or county line 

appeals 156 

Jurisdiction for penalty for not remov- 
ing fences 165 

Jurisdiction under fence law. rescuing 
animals breaking into inelosures— 

penalty 186 

Jurisdiction under pauper act 193 

Is overseer of poor in counties not un- 
der township organization 195 

Canvass returns in election for removal 

uf county seat 360 

y for Deglect to perform duties 361 

Jurisdiction under act relating to 

weights and measures 371 

Jurisdiction for penalty against animals 

running at large 372 

NAMES OF TOWNS. 

How named 32 

No two to have same name 82 

NOTICE. BeeFoKMB. 

Of first town election 21 

Of Insusance loss 204 

Of election " R06 

In cases of contested elections 322 

To take deposition in contested election 323 
Of election to allow animals to run at 

large 372 

OVERSEERS OF POOR, 

Justice to act 195 

To make reports 197 

To keei accounts 199 

supervisor ex-officio 200 

County hoard may appoint, when 200 

PARLIAMENTARY LAW 37-382 

PAUPERS. 

Supported by relations, when 191 

Failure to support, prosecution 191 

Overseer to make Complaint 191 

Proceedings on complaint 192 

Person bringing pauper into county 193 

County and town support 193 

Non-resident becoming 193 

-Residence" denned 194 

ersofpoor 195 

Support of poor by contract— bond 195 

Overseer's report— appropriations 197 

County hoard to erect poor-house, etc 198 

Power of county hoard 198 

Overseers to keep accounts 199 

Relief by county a-.'ent 199 

To be kept at poor-house 199 

Manner of support of, determined by 

ballot ". 200 

Supervisors, ex-officio overseers 200 

Residence of for voting purposes 200a 

Seporat" support of 200a 

Received at poor-house on order of 
overseer 200b 



Pa ok. 

Tuition of pauper children 200b 

POIND M \STKK. 

Election of 50 

Give notice of acceptance 7:; 

ajlect or refusal to serve 74 

Fees of 

Charges for keeping animals 89 

PRIVATE ROADS. 

Petition f »r damages 1 15 

Damages how paid— to whom paid 145 

Appeals as in other cases 145 

RAILROADS. 

Crossings and regulations 173-176 

Railroads to set up warning b ards at 

er ssings 173 

Exception as to cities and villages 173 

To cause bell and steam whistle to be 

rung or whistled at crossings 173 

Penalty for starting without ringing bell 

or sounding whistle 173 

Railroads to maintain and construct 

crossings,— neglect to 173,174 

Towns may construct and maintain if 

railroads neglect to 174 

Flagmen required at crossings 174 

Penalty for violation of law -...: 175 

To make fences on both sides of road.. 187 

Exceptions 187 

"When liable for damages 187 

Neglect to keep in repair fences 189 

Refusal to build fence 100 

RECORDING PLATS OF HIGHWAYS 171 

REGISTRY OF VOTERS. 

L w concerning : 329, 335 

RESIGNATION. 

Of town officers, justice may accept 78 

Of elective officers, to whom made 325 

REVENUE. 

What property assessed and taxed 207, 208 

Property exempt from taxation 208, 210 

Rules for valui g personal property..210, 211 

Rules for valuing real estate 211 

Personal propertv — when listed 212 

Who shall list and what listed 212 

Where listed and assessed 213 

What deemed personal propertv — man- 
ner of listing '. 213 

Schedule of personal property — form 216 

Rules for listing credit* .". 218 

Ruies for listing property of banks, etc.. 219 

Pawnbroker 220 

Capital stock of corporations 220 

State and national banks 221 

Listing property of railroads 223-227 

Tele.araph companies— returns 227 

Penalty for making false scbudule 228 

Real propertv— when listed— who liable 

for tax 228 

Appointment of assessors and deputies. 231 

Oath and duty of assessors 232 

Review of assessment by town b arcl 233 

Return of assessment to' county clerk. .. 234 

' Pay of assessors and deputies 235 

Duty of county clerk on return of as- 

Bessment 236 

Equalization of assessments bv county 

bo- rd 236 

Report of assessment bv clerk to audi- 
tor 238 

State board of equlization 230 

Rates of taxation 244 

Rates for State purposes 244 

Rates for county purposes 215 

Rates for all other purposes 245 

Collector's books— extending rates 245 

Warrant for collection annexed to book 247 
Qualification of town and district col- 
lectors 248 

Deliverv of collector's books— warrants 249 



INDEX. 



Page. 
Appointment of collectors in counties 

not under township organization 250 

Vacancies, etc.. in office of collector..250-254 

Manner of collecting taxes 254 

Distress andsale 255 

Removal without paying tax 257 

Power of collector to levy, etc., after 

final settlement 257 

Sworn statements bv collector of tax 

collected ., 258 

Return of town and d strictjeollectors.... 259 

Statement of delinquent tax 259 

Return of delinquent special assess- 
ment 261 

Advertisement for judgment and sale.... 262 

Applications for judgment 264 

Judgment for delinquent tax 266 

Sale of delinquent lands 269 

Certificate of purchase, at tax sale 271 

Copy of sale lists sent to auditor 272 

Redemption of lands sold for taxes 2/2 

Tax deeds 274 

Forfeited property 278 

Final settlement of county collector 279 

Partial settlement of county collector.... 281 

Final settlement for State taxes 282 

Liens of taxes 283 

Bondsman of collector and treasurer, 

who net eligible 285 

Liability on bond 285 

Sale of real estate on execution in behalf 

of State 286 

Redemption 286 

Double payment of taxes — refunding.... 287 
When assessment rolls, etc., destroyed... 288 
Property unjustly released from* tax- 
ation—duty of auditor 28S 

Omitted property — saving clauses 290 

Assessor or deputy may administer oaths 292 

Penalties against officers 292 

County to furnish books and franks 293 

County funds— keeping accounts of 293 

Definition of words used in revenue act 294 
Failure of collector to pay over— su:t.. 296 
Amendment— Rules for valuing per- 
sonal property 297 

Kind of funds taken for taxes 298a 

Return' as to real estate tax 298a 

County collector— powers 29S6 

Appeals— deposit 298c 

Proceedings in appeal cases 298d 

ROADS AND BRIDGES. 

Public highwavs defined 99 

Law of the road 99-101 

Commissioners of highways— duties 101-115 

To be kept in repair " 102 

Account to town auditors of tax re- 
ceived 110 

Poll tax— fines reported to auditors 110 

Suit for poll tax delinquent 112 

Contract for labor to pay poll tax 113 

Order on treas rer received as money ... 113 

Election and term of commissioners 113 

Meetings of commissioners 113 

Treasurer— appointment and duteis 113 

Bond of treasurer — how approved 114 

General overseer of highways — now 

chosen— dutn s 114 

Compensation of treasurer 115 

Regulations and penalties 115-123 

Defacing, etc., guide-board— penalty 115 

Obstructing road— penalty 115 

Commissioners may remove obstruction 116 

Injuring, etc.. bridge— penalty 118 

Fines— how recovered— disposed of.. .118-119 
When owners of land may erect bridge 

and railings 120 

Must be approved bv commissioners of 
highwavs .' 120 



PAGE. 

Owner keep in repair at his'expense 120 

Width of roads 121 

Petition for special, with 121 

Public roads to be opened in five years.. 121 
Commissioners to put up notice against 

fast driving 121 

Penalty for fast driving over bridge 123 

Commissioner mav enter land to con- 
struct ditches ". 122 

Altering, widening, vacating and laying 

out roads 123-145 

Petition and requ sites 123 

Post copies in public places 124,125 

Commissioner to fix time of meeting to 

examine roads 126 

Notices required 127 

Commisioners shall tile retusal to grant 

petition with town clerk 128 

In case of vacation of road commiss on- 
ers, shall file order with town clerk... 129 
Establishing new road, survey aud plat 

to be made 129 

Commissioners shall ascertain damages 130 

Damages may be agreed upon 131 

Agreement to be in writing 131 

Jury to assess damages , 133 

Land owner to receive notice Avhen 

damages are to be assessd 134 

Owners to prove damaaes 135 

Notice, how given to unknown owners.. 135 

Damages, from what fund paid 137 

Owners may have separate trials 138 

Commissioners may revoke proceedings 139 
No other proceedings to be had for one 

year 139 

"When proceedings. not revoked 139 

Order to be filed with town clerk 140 

When damages are released or agreed 

upon r. 141 

Examination and survey when damages 

are released 142 

Private roads 145 

Appeal, proceedings in 14s-156 

Bridges, provisions for building and 

repairing 137-160 

Re-survevof roa j to be made when peti- 
tioned for 161 

New road not to vacate old road unle-s 

petition states 161 

Commissioners authorized to contract 

for bridge* 161 

Form if notice of public let.ing 162 

Commissioner may let private contract 
for repair of br.dges not exceeding 

825.00 162 

Commissioners may reject all bids 162 

Contractor to give bond- 163 

Contracts for bridges, how payable 163 

Orders on commissioners received for 

tax 164 

Removal of fences when necessary 164 

Sixty days notice required .*. 164 

Per diem of commissioners- how paid... 165 

Roads to be opened within five years 167 

Roads when deemed vacated 167 

Commissioners to estimate tax for road 

purposes 167 

Tax in villages to be paid to treasurer... 167 
Commissioner to estimate taxes for 

bridge purposes 168 

Statement of tax to be submitted to 

county board 168 

Tax to whom paid when collected 170 

Neglect of dutv— penaltv 170 

ROAD^TAX. See'RoADS and Bridges. 

By town meeting 46 

Bv commissioners of highwavs 167 

SCHOOL TRUSTEES. 

Election of township trustees 63 



INDEX. 



380 



Page. 
STATES ATTORNEYS. 

Duties of 367 

l. BOARD OF EQUALIZATION. 

Election and dutiea 239-244 

Organization— time of meeting 240 

Averaging assessments 241 

Report 243 

Compensation 243 

Quorum 244 

SUPERVISORS. 

Power of, in division of town prop- 
erty 38,39 

To meet and apportion personal estate 

of towns when divided 39,40 

Meeting now called 4() 

To sign deeds of conveyance for town 65 
In absence of town cleric, to give notice 

of town meeting 58 

To be one of judges of election in town 60 

When to call special town meeting 60 

Election of 61 

Overseer of poor ex officio 61, 195 200 

Term of office 62 

Assistant supervisor, when eh eted 62 

Refusal to serve— penalty 75 

To pay over money to successor 75 

A member of board of appointment 76 

General duties of. 79-82 

Meetings of the board of 319 

Compensation of supervisor 88 

Fees oi supervisor 88 

A member of board of health 87 

( Sompensation of 88 

Fees of 88 

To make statement— financial affairs 94 

To hie statement with town clerk 94 

Penalty for not 94 

With assessor and collector to canvas 

returns, w.,en 97 

Office united with poormaster, when 98 

Duty in road appeals 149-155 

To hx time forbearing road appeal 149 

Powers and duties in road appeal cases 150 

Shall report decision 151 

Majority may decide 155 

To authorize town clerk to post notices 
for special meeting to borrow money 

to build bridge 15*9,160 

With town clerk issue bonds for build- 
ing bridge 160 

Overseer of the poor a>officio 195-200 

TAXES. See REVENUE. ROAD Tax. 
TOWN AUDITORS. 

Powers and duties 84-87 

Account of commissioners of highways.. 110 

Audit reports of overseer of poor 197 

TOWN CLERK. 

When and how elected 61 

Term of office 62 

'fown clerk last elected to be clerk of 

town m eting 64 

To be clerk of election in incorporated 

towns and villages 64 

Po>t notices when more than one po ling 

place is necessary .65,96 

To make statement of result of meeting 66 

Notice to per-ons elected on poll list 66 

To decide tie vote 67 

To give notice ;o person elected 68 

File list of names elected to office 68 

Keep faithful minutes of meeting 68-70 

When elected to take oath 72, 73 

Neglect to take oatti a refusal to serve... 73 

Refusal to serve, penalty 75 

Demand of predecessors books and 

papers 75 

Deliver books and papers to successor.... 75 
Demand of administrator books and 
papers upon death of predecessor 76 



Pag B. 

Duty in vacancies of town office 76 

Record, resignations made to justices 78 

Transmit copy to county clerk 78 

Bond of supervisor to be* approved by 

him '.. 7!) 

When bond.is forfeited, duties 79 

Shall have custody of records 82 

Power to administer oaths, take affidavits 82 
Record proceedings of town meetings 

and by-laws 8:1 

Deliver to supervisor copies of votes 83 

Certify taxes, neglect of duly to 83 

Certified copies of papers made by h m 

evidence 83 

General duties of 82-64 

To be one of town auditors 84 

Accounts audited kept by him and read 

at town meeting 85 

Is one of board ol health 87 

Keep records of board of h alth 87 

Compensation and fees 88 

To give notice of annual town meeting.. 59 

To keep estray book 90 

Record and post supervisor, financial 

statement 94 

Penalty for not complying 94 

Office united with city" clerk, when 98 

To keep record of release of road dam- 
ages 131 

To record order and survey altering, 

widening, or laying out road 140 

Clerk's record or certified copy, evidence 114 
With supervisor to issue bonds for build- 
ing bridge^ 160 

TOWN MEETINGS. 

Annual town meetings 57-60 

Special town meetings 60-61 

Election at town meeting 61-68 

Mode of conducting town meetings 68-72 

Miscellaneous business at 68 

Who clerk of meeting 68 

Minutes of proceedings kept 68 

Moderator 71 

How questions decided 71 

Disorderly conduct at— arrest 71 

Who may vote at 72 

TOWNSHIP INSURA NCE COM PANIES. 

Organization 201 

Declarat on— charter 201 

Copy of charter, evidence 20L 

Directors— election— cumulative voting 202 
Officers— bond of secretary and treas- 
urer 203 

Powers of corporation 203 

Membership— policies— premiums 203 

Kb d of prope.ty insured— limitation.... 2 ' I 

Notice of loss— adjustment 2*4 

Assessment to pay loss— suit 204 

Annual statement 205 

Withdrawal of members 205 

Report to auditor 205 

Dissolution...... 206 

TOWNSHIP ORGANIZATION. 

Origin and progress 15-28 

Act concerning 29 

How adopted 29-35 

How discontinued 35-36 

Alteration of boundaries and division 

of towns 36-43 

Corporate power of towns 43-56 

Legal proceedings in favor and against 

towns 56-57 

Towu meetings 57-60 

Special town meetings 60-61 

Town elections, mode of conducting. ..61-6S 

Mode of conducting town meetings 68-72 

Qualification and tenure of office 72-76 

Vacancies in town offices 76-78 

Supervisor and his duties 79-82 



INDEX. 



Page. 

Town e^erk and his duties 82-83 

Board of town a ditors 84-87 

Board of health 87-S8 

Compensation of town officers 7.. .88-89 

Estrays 89-90 

Canada thistles 91-93 

Supervisor and his duties 9-4-95 

Election of" town officers in incorporated 

towns and cities 95-97 

Township organization within cities.. ..97. 9S 
Countv board in 349 

TREES 

Maybe planted ah»ngroad 119 

Bountv by coun v b -ard for p anting 352 

VACANCIES IN OFFICE. 

In town offices— how rilled 76 

In board of appointment 76 



Page. 
Warrant of appointment filed with town 

cl-rk 77 

In elective offices, when shall happen.... 325 

How filled 326 

VACATING- HIGHWAYS. See Rqads and 
Bridges. 
When highway vacated land reverts to 
adjoining lot. unless otherwise pro- 
vided 172 

WEIGHTS AND MEASURES. 

Standard established 369 

Penalty for giving less 370 

Sealer of 370 

Selling by incorrect 371 

WOLF SCALPS. 

Bounty on 374 




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